Filed 10/5/15 Vargas v. County of Los A ng e les CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

ROY TORIVIO VARGAS et al
.,
Plaintiffs and Appellants
,

v.

COUNTY OF LOS ANGELES et al
., Defendants and Appellants. B257371
(Los Angeles County Super. Ct. No. BC480493)

APPEAL from a judgment of the Superior Court of Los Angeles County, Deirdre Hill, Judge. Affirmed in part; rever sed in part.

Benbrook Law Group, PC, Bradley A. Benbrook and Stephen M. Duvernay for Plaintiffs and Appellants.

Mark J. Saladino, County Counsel, Jennifer A.D. Lehman , Assistant County Counsel, Edward L. Hsu and Alexandra Zuiderweg, Deputy Attorneys Ge neral, for
Defendants and Appellants

.

* * * * * *2

Absent a license or other exemption, it is illegal to carry a concealed weapon. (Pen. Code § 25400.) 1 Both the sheriff of a county and the chief of a mun icipal police department have di scretion to issu e a license to carry a concealed weapon when the applicant satisfies statutory requirements . ( § § 26150, 26155.) The police chief and
sheriff use uniform application s ( § 26175), apply uniform criteria for evaluating applications ( § § 26150, 2615 5 ) , and are guided by a uniform time period for deciding whether to issue a license ( § 26205)

. This case concerns the following concealed weapon license policy (Policy) issued by the Los Angeles County Sherriff’s Department ( Department): “If the applicant resides i n an incorp or ated city, which is not policed by our Department, he or she must first apply to the Chief of Police of their [ sic ] city of residence for a CCW [ (concealed weapon) ] license and have the application acted upon. Within 60 days
after a denial of the application, the city resident may file a separate application with
the

. . . Depa r tment, attaching a copy of the application denied by the Chief of Police. The Sheriff will exercise independent discretion in granting or denying licenses to these app licants. Further, the Sheriff may review, consider, and give weight to the grounds upon which the previou s denial was made.”
Another court has held that a similar policy does not violate equal protection principles , concluding that “ [t] he classification here

— between residents of municipalities, and other County residents

— also is supported by a rational basis. Cities in Contra Costa County have a legitimate interest in regulating the issuance of concealed weapons licenses. The County has the same interes ts. When a citizen is in the jurisdiction of both of these entities, it is only proper that such an individual be subject to the police powers of each, just as citizens of the United States have been subject to both state and federal legislation for more than 200 years. The Sheriff ’ s Policy ’ s limited deference to municipal governments also promotes comity between the County and its municipalities. Finally, in light of the County ’ s willingness to

1 Undesignated statutory citations are to the Penal Code.3

consider applicants that a city has denied or failed to res pond to, city residents are at a comparative advantage relative to citizens not living in a municipality. Whereas other County residents get only one chance to apply for a concealed weapons license, the city residents may receive two opportunities.” ( Marc h v. Rupf (N.D. Cal. 2001) 2001
WL 1112110, * 4.) Here, the trial court concluded t hat the P olicy violated California law and issued a writ of mandate directing the Los Angeles County S heriff (Sherriff) to consider all applications including those from a r esident of an incorporated city that
does not contract with the D epartment. The trial court denied the plaintiffs ’ request for attorney fees. Finding no statute or case prohibit s the P olicy, w e re verse the judgment with directions to the superior court t o vacate the writ of mandate entered April 29, 2014 , and enter a new judgment denying the petition for writ of mandate. In the cross

appeal, we aff

irm the order denying plaintiffs’ requested attorney fees.

FACTS AND PROCEDURE Jennifer Lynn Lu, Sean Allen Lu, Roy Torivio V argas, Michael Saulibio and the Calguns Foundation, Inc.
, sued the County of Los An geles (County) , the Department and former Sheri ff Leroy B. Baca in his individu al capacity an d his official capacity. (The Lu s eventually were dismissed f rom the case apparently because they relocated .) Plaintiffs alleged that they were residents of the following cities, which did not contract with the Department for services : San Gabriel , Monterey Park, and Alhambra. In the operative complaint
, Calguns F oundation , Inc., identifie d itself as “dedicated to

. . . defending and protecting the civil rights of law

- abiding California gun owners. ” Further
, according to the operative complaint, plaintiffs ’ applications to the S heriff for a concealed weapon licens e were not considered because they did not first apply to the c hief of p olice in the c ity where they resided. It is undisputed that the She riff has the above

- quoted Policy requiring applicants who live
in cities that do not contract for services with the Department to apply to the applicant’s municipal police chief for a concealed weapon license.4

In its motion for summary judgment and in its opposition to plaintiff s ’ petition
for writ of mandate
, the County argued that “City police chiefs are in a better position to know the crime trends of their cities, what problems could be created by the
issuance of a CCW license to its residents, and what resources are available to obviate the needs for a CCW permit. This is why counties throughout California maintai n this same requirement

. . . .” County further argued that the S heriff’s policy promotes comity between jurisdictions. Jim Smith, the police chief for the City of Monterey Park , provided a declaration testifying that “it is in the public interest that r esiden ts of my City first apply to my Department for a CCW permit.” “As the Chief of Police, I am responsible for the police services provided in Monterey Park. In that capacity, I am familiar with the residents of my City, crim e tre nds within my City, c haracteristics of areas within my City and specific locations and situations in my City that may require special attention and criminal investigations be ing conducted in my City. I am also familiar with resources my Department is able to allocate to preve nt crime and alleviate the need for private citizens to carry concealed weapons.” Chief Smith further declared: “While the Sheriff of Los Angeles County is authorized to issue C CW permits in Los Angeles County, I appreciate and value that the Sheriff req ui r es a CCW permit applicant who resides in my City to first apply with my Departm ent. It promotes comity between our Departments, and gives me the opportunity to assess whether a resident of Monterey Park meets the good cause requirement in the conte x t o f police services provided by my Depa r tment prior to bringing a concealed handgun into my City.” In support of their petition for writ of mandamus, plaintiffs argued Salute v.
Pitchess (1976) 61 Cal.App.3d 55 7 , 560

- 561 ( Salute ), required the Sheriff to co nsider every application without initially deferring to any chief of police

. Plaintiffs argue d that the Policy required an additional application in contravention of s ection 26175, subdivision (g).5

The trial court found plaintiffs’ arguments persuasive. Relying heavily on
Salute
, supra , 61 Cal.App.3d 557, the trial court concluded that the Policy violated
state law because the Sheriff was refusing to consider applications by persons living in incorporated cities. The court concluded the Policy was “arbi trary” because the
S heriff did not consider the applications until after the applicant had appl ied to the local police chief.
The trial court iss ued a writ of mandate directing that “Defendants

. . . cease their policy, practice and conduct of requiring a ll applica nts who are from, or reside in, incorporated cities within the County of Los Angeles to apply to the chief of police of their city of residence for a license to carry a concealed weapon, and be denied by that chief of police, before Defendants wi ll consider an application from the applicants for a license to carry a concealed weapon

. . . .” The court further ordered defendants to review all applications for license s to carry a concealed weapon.
Plaintiffs dismissed their causes of action for de claratory relief and violation of equal protection. The court denied plaintiffs ’ reque sted attorney fees. Defendants appealed from the issuance of the writ of mandate. Plaintiffs cross

appeal ed from the denial of their requested attorney fees.
DISCUSSIO N

“ ‘ A writ of mandate will lie to “ compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station ” (Code Civ. Proc., § 1085) “ upon the verified petition of the party beneficially interested, ” in cases

“ where there is not a plain, speedy, and adequate remedy, in the ordinary course of
law. ” (Code Civ. Proc., § 1086.) The writ will issue against a county, city or other public body or against a public officer. [Citations.] However, the writ will not lie to control discretion conferred upon a public officer or agency. [Citations.] Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2 ) a clear, present and beneficial right in the petitioner to the performance of that duty[.] ’ ” ( California6

Correctional Supervisors Organization, Inc. v. Department of Corrections (2 002) 96 Cal.App.4th 824, 827.)

“ ‘ In reviewing the trial court ’ s ruling o n a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make it s own determination when the case involves resolution of questions of law where the facts are undisputed.” ( California Correctional Supervisors Organization, Inc. v. Department of Corrections
, supra , 96 Cal.App.4th at p. 827 .) Here, it is undisputed that the Sherriff has implemented the Policy with respect to plaintiffs . Whether the P olicy violates California law is a question of law
, which we review de novo

. ( Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
1. Calif ornia Statutes Do Not Prohibit the Policy
The California Penal Code authorizes both the sheriff of a county and the police
chief of a city to issue the concealed weapon licenses

. S ection 26150 provides: “( a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following: [¶] (1) The applicant is of good moral
character. [¶] (2) Good cause exists for issuance of the license. [¶] (3) The applicant is a resident of the county or a city within the county, or the applicant ’ s principal place of employment or business is in the county or a city within the county and the applicant spends a substantial p eriod of time in that place of employment or business. [¶] (4) The applicant has completed a course of training as described in Section
26165. ”
S ection 26155 provides: “ (a) When a person applies for a license to carry a pistol, revolver, or other firea rm capable of being concealed upon the person, the chief or other head of a municipal police department of any city or city and county may issue a license to that person upon proof of all of the following: [¶] (1) The applicant is of good moral character

. [¶] (2) Good cause exists for issuance of the license. [¶]7

( 3) The applicant is a resident of that city. [¶] (4) The applicant has completed a course of training as described in Section 26165. ”
Subdivision (c) of section 26155 , which plaintiffs em phasize, provides :

“ Nothing in this chapter shall preclude the chief or other head of a municipal police department of any city from entering an agreement with the sheriff of the county in which the city is located for the sheriff to process all applicati ons for licenses, renewals of licenses, and amendments to licenses, pursuant to this chapter .” (Italics added.) Based on the italicized language, plaintiffs argue that the rule of statutory
construction expr e ssio unius requires interpreting sections 2615 0 and 26155 to
conclud e that the Legislature permitted “the head of a municipal police department to transfer (by agreement) its a u t h ority to issue concealed

- carry licenses to the county sheriff, but the Legislature gave no similar authority for the sherif f to transfer that
author ity in the opposite direction

— to the loc a l police.” To support this argument,

p laintiffs cite Gikas v. Zolin (1993) 6 Cal

. 4th 841, 852 ( Gikas ) , in which our high
court considered whe ther the acquittal of a criminal charge of drivi ng under the influence barred a subsequent administrative proceeding on the same grounds

. ( Ibid .)
The court looked to prior versions of the governing statute to determine whether the Legislature intended to bar an administrative proceeding after a crimin al proceeding. ( Ibid .) Although the first version of the bill sta ted that “ neither the criminal nor the administrative proceeding wou ld have any effect on the other
, ” the final version provided that “an ‘acqutt[a l ]’ of criminal charges does preclude the administrative
sanction. ” ( Ibid .) Our high court explained that
, because the Legislature considered
and reject ed the provision that the criminal prosecution would not bar a subsequent administrative proceeding
, “ [ t]he expression of some things in a statu te necessarily means the exclusion of other things not express ed .” ( Ibid .)
T he principle that the “ expression of some things in a statute necessarily signifies the exclusion of other things not expressed ” applies “ ‘only when the Legislature has intention ally changed or excluded a term by design.’” ( S ilverbrand v.8

County of Los Angeles (2009) 46 Cal.4th 106, 126.) “The rule is inapplicable: where no manifest reason exists why other persons or things than those enumerated should
not be included and thus exclusion would result in injustice [ citation ]; to a statute the language of which may fairly comprehend many different objects, some of which are mentioned merely by way of example, without excluding others of similar nature [citation]; to a matter which is only incidentally dealt with in a statute [citation]; where its application would run counter to a well established princip le of law [citations].” ( Estate of Banerjee (1978) 21 Cal.3d 527, 539 , fn. 10.) Applying these principles here, the Senate bill, which that led to the
codification of section s 26 150 and 26155
, reflects no Legislative intent to preclude the Sheriff from deferring to a police chief. (The b ill was introduced, amended twice, enrolled and chaptered.) In contrast to Gikas , p laintiffs c ite no legislative history

suppor ting their contention that the L egislature intended to preclude a sheriff from deferring to a police chief in an area policed by the police chief. They cite no statutory language suppor ting their assertion that the L egisla ture intended to allow “citizens the choice of either applying to their local sheriff or chief of police” rather than allowing the sheriff and chief of pol ice to decide to whom an applicant shall apply when the applicant lives in the jurisdiction of both a police chief and sherriff

. Plaintiffs’ unsupported assertion is not persuasive because neither the relevant statutes nor their history expressly state or implicitly suggest that the L egislature intended to preclude
the S heriff from deferring to the polic e chief in an area where services are provided by the police chief.
Moreover , the italicized language

— the only statutory lang uage relied on by plaintiffs

— cannot reasonably be understood to reflect a Legislative prohibition on the
Sheriff from deferring to a municipal police chief

. According to the statute, “[n]othing in this chapter shall preclude the chief or other head of a municipal police department of any city from entering an agreement with the sheriff of the county in which the city
is located for the sheriff to process all applications

. . . .” (§ 26155, subd. (c).) Thus,
the Legislature has made its interpretation of the chapter clear : the statutes do not9

prohibit a n agreement for the she riff to process all applications. But just as no statute precludes an agreement for a sheriff to process all applications , similarly no statute precludes the police chief from processing applications in the method identified in the Policy. Pl aintiffs cite no authority supporting the ir argument that the phrase

“ [ n ] othing

. . . shall preclude” one agreement (i.e.
, for the Sheriff to process applications) is or should be understood to preclude a different agreement (i.e.
, for the police chief to process applications)

. Had the Legislature intended to preclude an

a greement such as that reflected in the P olicy it could have so stated

. No other statutory requirement is potentially violated by the P olicy

. Both the
sheriff and police chief are required to have a uniform applicat ion. ( § 26175

. ) Neither
the sher iff no r the police chief can require an additional application. ( § 26175, subd. (g).) F urther both are required to issue a written decision wi thin 90 days of the initial application or 30 days of the receipt of the applicant’s criminal background check,
whiche ver is later . ( § 26205

. ) Both are required to provide notice of the reason for the denial of a license. ( § 26205.) Plaintiffs were not required to submit two applications unless they sought review by the Sheriff of the police chief’ s determination , whi ch as
the March court noted placed residents of a City at a compa ra tive advantage because “[w] hereas other County residents get only one chance to apply for a concealed weapons license, the city residents may receive two opportunities. ” ( March v. Rupf
,

su pra , 2001 WL 1112110, *4.) In sum, p laintiffs fail to show the P olicy conflicts with
the statut es governing licens es to carry concealed weapons.
2. California Case Law Does Not Prohibit the Policy We now turn to plaintiffs’ principal argument that Salut e , supra , 61 Cal.App.3d 557 prohibits the P olicy. In Salute , the appellate court considered a predecessor to section 26150. ( Salute
, at p. 559.) The sheriff had a fi x ed policy to deny concealed

weapons licenses except to judges and public office holders . ( Id . at p. 560.) The appellate court found such policy conflict ed with the sheriff’s statutory re quirements. “To determine, in advance, as a uniform rule, that only selected public officials can show good cause is to refuse to consider the existence o f good cause on the part of10

citizens generally and is an abuse of, and not an exercise of, discretion.” ( I bi d. ) The court further held that “[i]t is the duty of the sheriff to make such an investigation and determination, on an individual basis, on every application

. . . .” ( Id . at p p. 560

- 561.) Plaintiffs argue this case is similar to Salute beca use the S heriff refused to consider their applications on the merits unless they first appl ied to the local police
chief. According to them
, Salute requires that the S heriff evaluate whe ther there is good cause for each application submitted to it regardless of the applicant’s residency in an incorporated city

. The most important distinction between this case and Salute is that plaintiffs had the opportunity for their applications to be considered by their police chiefs, who were authorized to grant licenses. In Sa lute , the court was concerned applicants who were not judges or other public officials would have no chance of obtaining licenses
because the sheri ff would not consider whether they could show good cause. ( Salute,

supra , 61 Cal.App.3d at pp. 560

- 561.) Whereas the policy in Salute prevented any
review of an application
, the Policy here simply identifies the decision maker for
residents of cities who do not use the Department. In contrast to the policy in Salute
, the P olicy here not only requires review but permits review by both a police chief and
the Sheriff. Salute therefore does not prevent the Policy. 2
3

. Attorney Fees
Because we conclude the writ of mandate was improvidently granted, plaintiffs no longer are the prevailing party. Therefore they are not entitled to attorney fees and the court’s order denyi ng such fees must be affirmed.

2 Salute considered neither whether the sheriff could defer to a police chief nor whether relevan t statutes prohibit the policy. “A decision, of course, is not authority for what it do es not consider.” ( Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 348.)11 DISPOSITION
The judgment issuing a writ of mandate is re versed. The trial court is directed to enter a new judgment denying the petition for writ of mandate. The order denying attorney fees is affirmed. The parties shall b ear their own costs on appeal.

FLIER, Acting P. J.
WE CONCUR:

GRIMES, J.

OHTA, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.