Judge: Curtis A. Kin, Case: 22STCP04085, Date: 2024-02-15 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Petitioners
Chaar, Inc. and 7-Eleven, Inc. move for an order staying the Decision issued
with respect to the nuisance abatement action concerning a 7-Eleven market.

I.       Factual Background

            Petitioner Chaar, Inc. (“Chaar”) operates the 7-Eleven market located at
6701 W. Santa Monica Boulevard in Los Angeles (“Market”) as a franchisee. (Pet.
¶ 1.) Petitioner 7-Eleven, Inc. is the franchisor. (Pet. ¶ 2.) Petitioners
Chaar, Inc. and 7-Eleven, Inc. (collectively, “7-Eleven”) are co-licensees on
the Type 20 (beer and wine) license issued by the California Department of
Alcoholic Beverage Control (“ABC”) issued to the Market. (Pet. ¶¶ 1, 2.)

            The Market is a tenant in a one-story commercial
building. (City Ex. 13 at 272.) The other tenants of the building are a donut
shop and a laundromat. Prior to the administrative
decision at issue, the Market operated 24 hours daily. (Pet. ¶ 12; City Ex. 13
at 272.) The donut shop operates 5:00 a.m. to 5:00 p.m. on Monday through
Friday and 6:00 a.m. to 2:00 p.m. on Saturday and Sunday. (City Ex. 13 at 272.)
The laundromat operates 6:00 a.m. to 10:00 p.m. daily. (City Ex. 13 at 272.) The
adjacent property to the west is a three-story LGBT youth and senior housing
building. (City Ex. 13 at 273;
City Ex. 7 at 135.) The adjacent property to the east and across Las Palmas
Avenue is a seven-story residential apartment building known as AVA Hollywood. (City
Ex. 13 at 273, 294.)

            On May 29, 2020, respondent City of Los Angeles (“City”)
initiated a nuisance abatement action against the Market. (Pet. ¶ 13.) On
February 15, 2022, an Associate Zoning Administrator (“AZA”) conducted a public
hearing in the nuisance abatement action. (Pet. ¶ 18.) The AZA took the case
under advisement and left the record open for further comment until December
15, 2022. (Pet. ¶18.)

            While the record was left open, a staff investigator conducted
a field investigation, whereby the investigator conducted site visits to twelve
businesses, including nearby 7-Elevens and liquor stores, between 11:00 a.m.
and 1:00 p.m. (Pet. ¶ 19; Evans Decl. ¶ 4 & Ex. 2 at 16-18.) During the
site visits, the investigator asked questions relating to hours of operation,
on-site security personnel and their working hours, and the type of active
liquor license maintained by the business. (Evans Decl. ¶ 4 & Ex. 2 at 16-18.)
Petitioners contend, and the City does not dispute, that the field
investigation was not disclosed to petitioners before the AZA issued its
determination in the nuisance abatement action. (Pet. ¶ 20; Opp. at 14:4-5.)

            On March 7, 2023, the AZA issued the Decision in the
nuisance abatement action. (Evans Decl. ¶ 4 & Ex. 2.) The Market was
determined to be a public nuisance. (Evans Decl. Ex. 2 at 60.) Under the
Decision, the following was required:

the modification of the
operation a convenience store, known as 7-Eleven, located at 6701, 6703, 6705
and 6707 West Santa Monica Boulevard, in order to mitigate adverse impacts
caused by the said operation and any potential impacts caused by any future
operation of the use ….

(Evans Decl. Ex. 2 at 2.)

Conditions on the Market
were imposed, including limiting the operations to 5:00 a.m. through 11:00 p.m.
daily. (Evans Decl. Ex 2 at 4.) The
Decision also imposes conditions regarding the use of the property, the
premises, or the site, as referenced by the following examples:

Condition 5: All graffiti
on the site shall be removed and painted over to match the color of the surface
to which it is applied with anti-graffiti paint within 24 hours of its
occurrence.

Condition 18: The business
operator shall not allow access onto the property by persons known to them to
be prostitutes, pimps, prostitution customers, parolees with prior narcotic or
prostitution offenses, narcotics users, narcotics possessors, narcotics sellers
or manufacturers of illegal controlled substances….

Condition 20(i): The
security guard shall discourage and dissuade patrons who remain on the premises
for more than 20 minutes to leave.

(Evans Decl. Ex. 2 at 2,
4, 5.) The Decision also cited the field investigation which was not disclosed
to petitioners. (Evans Decl. Ex. 2 at 16-18.)

            On March 17, 2023, petitioners filed an appeal to respondent
Los Angeles City Council. (Pet. ¶ 27.) On September 19, 2023, the City Council
upheld the Decision. (Pet. ¶ 29.) On September 27, 2023, the Mayor approved the
Decision. (Pet. ¶ 29.)

II.      Procedural History

On
December 8, 2023, petitioners filed a Verified Petition for Writ of Mandate
Pursuant to C.C.P. 1094.5. No Answer has been filed.

On
January 5, 2024, petitioners filed the instant motion. On January 30, 2024,
respondent City of Los Angeles, which includes respondent Los Angeles City
Council, filed an opposition. On February 7, 2024, petitioners filed a reply.

III.     Legal Standard

CCP
§ 1094.5 provides two different standards for a stay. Section 1094.5(h) applies
to administrative orders of any licensed hospital or certain state agencies and
requires the petitioner to show that (1) “the public interest will not suffer”
and (2) the “licensed hospital or agency is unlikely to prevail ultimately on
the merits.” (See also Medical Bd. of California v. Sup. Ct. (1991) 227
Cal.App.3d 1458, 1461.) Because this action is against the City of Los Angeles,
section 1094.5(g) applies here. CCP § 1094.5(g) provides, in pertinent
part:

(g)
Except as provided in subdivision (h), the court in which proceedings under
this section are instituted may stay the operation of the administrative order
or decision pending the judgment of the court, or until the filing of a notice
of appeal from the judgment or until the expiration of the time for filing the
notice, whichever occurs first. However, no such stay shall be imposed or
continued if the court is satisfied that it is against the public interest.

The
administrative stay provision of Section 1094.5(g) “requires the superior court
to weigh the public interest in each individual case.” (Sterling v. Santa
Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187.)

IV.     Analysis

A.          
Evidentiary Matters

7-Eleven’s request to take judicial notice of
Exhibits 1 and 2, sections of the Los Angeles Municipal Code, is GRANTED,
pursuant to Evidence Code § 452(b).

The City’s request to take judicial notice of
Exhibits 1 through 16, portions of the administrative record, is GRANTED. (Evid.
Code § 452(h); Jefferson Street Ventures, LLC v. City of Indio (2015)
236 Cal.App.4th 1175, 1190 [taking judicial notice of administrative record
submitted before trial on petition for writ of mandate].)

The City’s request to take judicial notice of
Exhibits 17 through 19, sections of the Los Angeles Municipal Code, is GRANTED,
pursuant to Evidence Code § 452(b).

The City’s evidentiary objections are OVERRULED.

A.          
Whether Public Interest Would Suffer with Stay

The Court first addresses whether the public
interest would suffer with a stay of the Decision, as no stay “shall be imposed
or continued if the court is satisfied that it is against the public interest.”
(CCP § 1094.5(g).)

7-Eleven contends that it has voluntarily imposed security
measures and property improvements starting in August 2020, including hiring a
nighttime security guard, fencing off a portion of the parking lot in front of
the commercial building to restrict vehicle access, checking the exterior of
the building every hour to pick up litter and prevent loitering and
panhandling, installing two security cameras and additional exterior lighting
for better nighttime visibility, installing a security camera at the front of
the premises to help the clerks monitor the exterior at night, putting up signs
to discourage loitering, installing electronic “mag locks” to prevent persons
posing a problem from entering the Market, and discontinuing the sales of malt
liquor. (Evans Decl. ¶¶ 13, 14, 21 & Ex. 4; Ali Decl. ¶ 4.)

7-Eleven also relies on the testimony of Senior
Lead Officer Brian White, who was the responsible person at the Los Angeles
Police Department (“LAPD”) in the nuisance matter, during the public hearing on
February 15, 2022. (Evans Decl. ¶¶ 9, 12 & Ex. 2 at 24.) Officer White
testified that having a security guard in the parking lot in the evening helps,
closing off the parking lot and putting up the fence did help, lighting in the
lot is key, the mag lock can make things better, there were “[s]ome positive
effects due to the changes made,” and “conditions have been effective.” (Evans
Decl. ¶ 22 & Ex. 2 at 29.) Further, on January 11, 2022, when counsel for
7-Eleven consulted with Officer White regarding conditions to which it would
agree to address the nuisance, conditions which were consistent with the
measures it was already taking, Officer White stated that he was “good with the
conditions as submitted.” (Evans Decl. ¶ 19 & Ex. 3.)

 7-Eleven
also contends that Calls for Service (“CFS”) to LAPD to provide police services
to 7-Eleven’s premises have decreased after 7-Eleven began working with the
LAPD to address the nuisance activity. (Evans Decl. ¶¶ 10, 11, 23.) After the
City pointed out significant inaccuracies in 7-Eleven’s calculations presented
in the motion (Opp. at 10, fn. 3; compare City Ex. 12 at 221 [letter submitted
by counsel for 7-Eleven on 12/15/22] with Evans Decl. ¶ 23), 7-Eleven
admitted to the inaccuracies and withdrew its reliance upon them.  (Kroll Decl. ¶ 8 [“W]hen arguing the
percentage declines in its Opening Brief, Petitioners withdraw those
arguments”].) However, 7-Eleven maintains in reply that the monthly CFS have decreased
by 69% per month from 2019 to 2022 (Kroll Decl. ¶ 9 [decrease from 13.33 CFS
per month in 2019 to 4.13 CFS per month in 2022]).  

            To
determine the effect that 7-Eleven’s measures to mitigate the nuisance on the
subject premises have had on CFS, crimes reported, and arrests, the following
discussion focuses on the time period after August 2020, when 7-Eleven began implementing
mitigation measures.

Notably, 7-Eleven does not address comparative data
presented by the City. From July 15, 2019 to February 16, 2022, when comparing the
subject Market, nine other 7-Eleven markets and 20 other businesses selling
alcohol, the subject Market had the second highest number of CFS (293) and third
highest number of arrests (11). (City Ex. 8, Ex. 13 at 315.) As Detective
Benjamin Thompson testified during the hearing:

I would request that you deny the appeal. The same
activity that I observed occurring from 2017 to 2019, in terms of calls for
service, crimes, arrests from the police department, is continuing to occur in
alarming numbers at and around this business. I have done surveys with crime
statistics from 2019 all the way up through 2022 and I’ve found that business
is still connected to unusual amounts of calls for service and reported
criminal activity. It’s about 100 less than it was from 2017 to 2019 but, still,
it exceeds anything in the immediate area by hundreds of numbers.

(City Ex. 15 at 417-18) While the Court recognizes Officer
White may have taken over for Detective Thompson as Senior Lead Officer (Evans
Decl. ¶ 9), this does not invalidate Detective Thompson’s review of crime
statistics and opinion concerning the nuisance activity that the Market
attracts. Thus, even if the CFS have decreased from year to year, there were
still a relatively high number of CFS and arrests compared to nearby
businesses.

Further, according to LAPD data of the subject
Market, there were 295 CFS between July 2019 to August 2022 (37 months with an average
of 8.0 per month) for theft, disturbance, robbery, narcotics, injuries, assault
with deadly weapons, forgery, battery, trespassing, arson, intoxication,
indecent exposure, disturbance, fights, noise disturbance, burglary,
intoxicated group in vehicle, and others. (City Ex. 12 at 234-49.) Of the 295
CFS, 182, i.e., 62% of the calls, were between 11:00 pm and 5:00 a.m.  In addition, 145 of the 295 CFS were between
September 1, 2020 and August 15, 2022, which is after the August 2020
mitigation measures.  For that period of
23.5 months, there was an average of 6.2 CFS per month.  Further, 83 of the 145 CFS after August 2020 were
between 11:00 p.m. and 5 a.m., which constitutes 57% of the CFS.  (Blau Dec. ¶¶ 8-12.)

Based on the foregoing, even if 7-Eleven’s
voluntary measures have reduced the number of CFS year-by-year, there were still
a significant number of CFS after August 2020 and between the hours of 11:00
p.m. to 5:00 a.m.—the hours when the Market is to closed under the Decision.

            With
respect to crimes reported, 32 crimes were reported between February 23, 2019
and March 18, 2022. (City at Ex. 12 at 251-53.) The crimes were for physical
injuries to customers, punching victims, verbal disputes, robbery at gunpoint,
breaking a glass panel in the door, loud music, use of lighter fluid in front
of entrance in an attempt to ignite the building, and multiple thefts by
individuals and multiple suspects.  Of
the 32 reported crimes, nine (28%) were between 11:00 p.m. and 5:00 a.m.  Of note, 11 of the 32 reported crimes came after
August 2020.  Of those 11 crimes
occurring after the mitigation measures, three (27%) were between 11:00 p.m.
and 5:00 a.m. (Blau Dec. ¶¶ 13-16.)

Fourteen arrests were made between August 9, 2019
and July 12, 2022. (City Ex. 13 at 255-56.) These arrests include robbery,
battery, vandalism, theft, and trespassing. Of the 14 arrests, eight occurred
after August 2020. (Blau Dec. ¶¶ 17, 18.)

            Thus,
notwithstanding any mitigation measures instituted as of August 2020, a
significant number of reported crimes and arrests continued thereafter, notably
for crimes occurring between 11:00 p.m. and 5:00 a.m.—the time period the
Decision addresses by requiring the Market to close.

            While
Officer White testified positively about 7-Eleven’s voluntary nuisance
abatement measures, his comments were vague and unsupported by data. With respect
to his assertion that “conditions have been effective,” in particular, it is
unclear how any measures implemented by 7-Eleven have been effective in light
of the foregoing data.

            Moreover,
as meaningful anecdotal evidence, the Hollywood Media Business Improvement
District (“BID”), in which the Market is located, submitted a letter to the
City on July 15, 2022, stating that, despite 7-Eleven’s claim of having
employed nighttime security, “its security service conducted surveillance of
the business in June 2022 and observed the same persistent issues of loitering,
littering, panhandling and a consistently dirty parking lot.” (City Ex. 7 at 136.)
On November 2022, the LGBT Center stated the nuisance continues and clients
have been intimidated, threatened, and subjected to violence from people
shopping at the 7-Eleven. (City Ex. 9.) During the public hearing, a
representative from AVA Hollywood testified that issues arising from the Market
have continued to grow year over year, including trespassing and crimes against
property from customers of the Market. (Evans
Decl. ¶ 4 & Ex. 2 at 34.)  

            By contrast, 7-Eleven has not presented any argument regarding
how closure of the Market between 11:00 p.m. and 5:00 a.m. would harm the
public interest.  The record is silent as
to whether the ability to access goods and services from the Market between
11:00 p.m. and 5:00 a.m. would in any way harm—or even inconvenience—the
community.  To the extent that the
franchisee is a member of the public, Chaar asserts that the limitation of
Market hours pursuant to the Decision has caused the Market to lose
approximately $48,000 per month in profit in October and November 2023. (Ali
Decl. ¶ 6.) Further, the Decision prohibits the Market from having an ATM.
(Evans Decl. ¶ 4 & Ex. 2 at 4 [Condition 10].) Chaar contends that the
ATM prohibition has caused it to lose $5,000 per month in profit. (Ali Decl. ¶¶
6-7.) Chaar avers that the Market now operates at a loss and 8 employees could
lose their jobs if it has to close the Market. (Ali Decl. ¶¶ 6-7.) The losses
asserted by Chaar appear to be inflated on their face and not supported with any
documentary or other evidence regarding how the purported losses were
calculated and the methodology used. 
Indeed, the Declaration of Market operator Anil Ali was made in January
2024, offers vague and conclusory assertions of lost profits in October and
November 2023, and omits and reference to operations in December 2024, thereby
ignoring 33% of the Market’s operations after the Mayor approved the Decision
on September 27, 2023. When this evidence of purported losses is weighed
against the continuing nuisance activity arising from the Market, the interests
of the residents of nearby buildings and the public in general must prevail.

            Based on the foregoing, the Court finds that it would not
be in the public interest to impose a wholesale stay on the Decision.[1]

B.          
Unruh Act

7-Eleven contends that Condition 18 violates the
Unruh Act because it would require 7-Eleven to discriminate against individuals
who have prior criminal pasts, even if they are not being disruptive. (See Civil
Code § 51; Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th
824, 840, 842 [Unruh Act’s enumerated categories are illustrative rather than
restrictive and includes “categories added to the Act by judicial construction”].)

Condition 18 states: “The business operator shall
not allow access onto the property by persons known to them to be prostitutes,
pimps, prostitution customers, parolees with prior narcotic or prostitution
offenses, narcotics users, narcotics possessors, narcotics sellers or
manufacturers of illegal controlled substances.” (Evans Decl. ¶ 4 & Ex. 2
at 4.)  

“[U]nder the Unruh Act entrepreneurs must generally
exercise [the] legitimate interest [of protecting their enterprises from
improper and disruptive behavior] directly by excluding those persons who are
in fact disruptive.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d
721, 740.) The activities implicated by Condition 18 are disruptive activities.
Condition 18 requires 7-Eleven to limit access to individuals known by it or
its employees to conduct nuisance activity. The City does not seek to “exclude
an entire class of individuals on the basis of a generalized prediction that
the class ‘as a whole’ is more likely to commit misconduct than some other
class of the public,” as prohibited by the Unruh Act. (Id. at 739.) If
an employee of 7-Eleven has seen a particular individual using or selling
narcotics or participating in prostitution at the premises, prohibition of that
individual would not be based on that individual’s personal, protected
characteristics, like race, sex, nationality, but because that person has
committed nuisance activity before. Like a felon who is not protected by the
Unruh Act (see Semler v. General Electric Capital Corp. (2011) 196
Cal.App.4th 1380, 1402), past nuisance activity by a particular individual
known by 7-Eleven is indicative that the individual will commit nuisance
activity again.

Condition 18 does not violate the Unruh Act.

C.          
A Limited Stay is Required

Although the Court finds that a wholesale stay is
not in the public interest, the Court finds that the conditions must be
modified because they are overbroad with respect to the property, premises, and
site to which they pertain. The AZA required the modification of the operation
of 7-Eleven, purportedly “located at 6701, 6703, 6705, and 6707 West Santa
Monica Boulevard.” (Evans Decl. ¶ 4 & Ex. 2 at 2.) However, 7-Eleven is a
tenant of only 6701 W. Santa Monica Blvd. (Thomulka Decl. ¶ 3; Ali Decl. ¶ 3.)
The neighboring donut shop occupies 6705 W. Santa Monica Blvd. (Thomulka Decl.
¶ 4.; Ali Decl. ¶ 3.) The neighboring laundromat occupies 6707 W. Santa Monica
Blvd. (Thomulka Decl. ¶ 4; Ali Decl. ¶ 3.)

On their face, some of the conditions can be read
to require 7-Eleven to manage premises over which it has no control. For
example, Condition 19 states: “The business operator shall inform the Police
Department immediately if any person on the property is engaging in narcotics
activity, or if narcotics paraphernalia is observed on the property.” (Evans
Decl. ¶ 4 & Ex. 2 at 2.) Because the AZA included 6703, 6705, and 6707 West
Santa Monica Boulevard in the Decision, Condition 19 could be read to require 7-Eleven
to monitor the patrons of the donut shop and laundromat, over which it has no
control, for narcotics activity. The Court finds good cause to impose a stay to
the extent that the Decision pertains to real property located at 6703, 6705,
or 6707 West Santa Monica Boulevard. (See Webster v. Superior Court
(1988) 46 Cal.3d 338, 350 [courts have discretion to determine terms and
conditions of stay].)

V.      Conclusion

          The
motion is GRANTED IN PART. The March 7, 2023 Decision at issue in the petition
for writ of administrative mandate is stayed to the extent that it imposes
conditions pertaining to real property located at 6703, 6705, or 6707 West
Santa Monica Boulevard.

Case Number: 22STCP04085    Hearing Date: February 15, 2024    Dept: 82

            Petitioner County of Los Angeles Sheriff’s Department petitions for a writ of mandate directing respondent Los Angeles County Civil Service Commission to set aside its decision imposing a thirty-day suspension of real party in interest Victor Beas’s employment and instead deny Beas’s administrative appeal of his discharge from employment.

I.       Factual Background

A.           Pre-Incident Occurrences

Real party in interest Victor Beas was hired by petitioner County of Los Angeles Sheriff’s Department in February 2008, working custody for approximately eight years and patrol at Industry Station for approximately three years. (AR 249.) On August 16, 2017, Beas responded to a call involving an alleged prowler. (AR 241.) Beas detained the suspect and attempted to arrest him; however, the suspect fought back and attempted to take Beas’s gun. (AR 242.) Beas felt that he was fighting for his life. (AR 242, 1652.) Beas asked for help over the radio from the Sheriff’s Communication Bureau, which advised units that Beas was involved in a fight and needed help. (AR 1652.) As a result of the fight, Beas suffered multiple contusions, cuts to his hand, and a concussion. (AR 242.) Beas’s supervisors were aware of the assault but did not offer Beas any time off. (AR 1656.) Nor did Beas receive any mental health assistance. (AR 1657.) Beas began to feel extremely isolated and alone at work and suffered from nightmares; the only way he was able to cope was by drinking alcohol. (AR 1657-59.)

B.           December 31, 2017 Incident

On December 31, 2017, at approximately 11:30 a.m., Beas was involved in a car accident in which he struck a parked Chevrolet truck. (AR 249.) Beas suffered a head injury and was taken to the hospital. (AR 250.) CHP officer Jeremy Keller, who had responded to the crash, followed Beas to the hospital, where he conducted a modified Horizontal Gaze Nystagmus (“HGN”) test and took two breath readings with a preliminary alcohol screen (“PAS”) device. (AR 250.) The readings on the PAS device came back as 0.237 at 12:41 p.m. and 0.276 at 12:44 p.m., both above the legal limit of 0.08. (AR 1178.) According to Officer Keller’s testimony at the administrative hearing, Beas was belligerent at the hospital and said “fuck the CHP” five or six times. (AR 1155-56.)

Based on the testimony of Beas’s expert, the Hearing Officer found during Beas’s appeal that the results of the HGN test were not reliable because Beas had suffered a head injury. (AR 250.) Further, based on the difference between the two PAS readings, the PAS readings were deemed inaccurate. (AR 250.) The Hearing Officer found that there was insufficient evidence that Beas was under the influence of alcohol at the time of the crash. (AR 250.)

The Hearing Officer also found that the Department did not establish Beas made derogatory comments to Officer Keller. (AR 250.) Officer Keller had not detailed the comments in the DUI report and the Traffic Collision Report, when such comments would be freshest in his mind, even though Officer Keller noted other comments from Beas with the “f” word that were not derogatory. (AR 236-37.)

Beas was arrested for violation of Vehicle Code section 23152, subdivision (a). (AR 250.) Beas entered a plea of nolo contendere for violation of Vehicle Code section 23103, subdivision (a) (reckless driving). (AR 251.) On March 16, 2020, the court dismissed the criminal complaint and set aside Beas’s plea and conviction. (AR 251.) Beas was not disciplined for the December 31, 2017 incident. (AR 1380, 1397-98.) However, following the incident, Beas was assigned to do non-deputy work with the secretarial staff at Industry Station. (AR 251, 1243.) He did not have access to a weapon or a badge. (AR 1244.)

C.           August 23, 2018 Incident

On August 23, 2018, while on duty, Beas consumed alcohol in his personal vehicle in the Station’s parking lot. (AR 251.) Beas was found asleep in his vehicle with the engine running. (AR 251.) Beas was in possession of a nearly empty bottle of alcohol. (AR 251.) It was determined that Beas was under the influence of alcohol, and he was arrested for violation of Vehicle Code sections 23152, subdivisions (a) and (b), and section 23222, subdivision (a) (possession of an open container of alcohol while driving a vehicle). (AR 251-52.) No criminal charges were filed. (AR 252, 1734.) Subsequently, Beas was transferred to relieved of duty status at his home. (AR 252.) No supervisors checked on him and no resources were suggested to him by any staff employees. (AR 1673, 1679.)

D.           August 28, 2018 Incident

On August 28, 2018, Beas, after consuming half a bottle of whiskey, called the Department’s Employee Support Services (“ESS”) for help with his alcoholism. (AR 240, 1674.) At the administrative hearing, Beas explained: “I called [ESS] because I cannot take it anymore. When I say not take it, alcoholism was killing me. The alcohol was in full control, and I reached out to [ESS] seeking medical attention to be taken to a treatment facility.” (AR 1674.) Industry Station personnel responded—his partner, several other units, a helicopter—believing Beas was intent on hurting himself; he was not. (AR 1675.) Beas was taken to the Station, where the Department’s Mental Health Evaluation Team placed him on an involuntary 72-hour hold pursuant to Welfare and Institutions Code section 5150, i.e., a “5150 hold.” (AR 241.)

E.           Efforts Toward Sobriety

Beas was sent to Aurora Charter Medical Center, where he was evaluated and diagnosed with alcoholism. (AR 1678.) Beas then enrolled in a treatment facility called First Responders First, where he received the help he needed. (AR 1678.) When Beas finished with his treatment there, he found a sponsor and began attending Police Officer Fellowship meetings, a group similar to Alcoholics Anonymous, but for peace officers. (AR 243, 1680.) Beas gives motivational speeches to young people about alcoholism and addiction, and helps other first responders get help with their addiction issues. (AR 243-44, 386-89, 1680.) At the time of the hearing, Beas had been sober for one year and seven months. (AR 1680.)

F.           Prohibition from Owning Firearm

As a result of the 5150 hold, Beas was prohibited from owning a firearm as of September 10, 2018.[1] (AR 1723-24.) Beas admitted that possessing firearms is an essential function of a deputy sheriff’s job. (AR 1724.)  Typically, under Welfare and Institutions Code § 8103(f)(1), the prohibition is for five years after release from the hold. However, two years after the prohibition was instituted, Beas successfully petitioned the court for restoration of his firearms, and the prohibition was lifted on September 11, 2020. (AR 358.)

G.           Discharge from Employment

On July 18, 2019, the Department served Beas with a Letter of Imposition, related to two different investigations, discharging him from his position as deputy sheriff. (AR 3.) The Letter provides:

IV2445704

1. That in violation of Manual of Policy and Procedures Sections 3-01/030.05, General Behavior; and/or 3-01/030.10, Obedience to Laws, Regulations, and Orders [as it pertains to 23103(a) Reckless Driving, California Vehicle Code (CVC); and/or 23152(a) CVC, Driving Under the Influence of Alcohol or Drugs], and/or 3-01/050.30, Off Duty Incidents; on or about December 31, 2017, you failed to maintain a level of moral conduct in keeping with the highest standards of law enforcement personnel, and/or engaged in behavior which caused the Department to be brought into disrepute, and/or demonstrated a pattern of undesirable and/or unprofessional behavior, brought embarrassment and discredit to Department, as evidenced by, but not limited to:

a. driving your personal vehicle under the influence of alcohol; and/or,

b. drinking alcoholic beverages prior to driving; and/or,

c. being involved in a non-injury traffic collision while operating a vehicle under the influence of alcohol; and/or,

d. displaying the objective signs of intoxication and emitting the odor of an alcoholic beverage from your breath when you were contacted by California Highway Patrol personnel; and/or,

e. providing breath samples on the Preliminary Alcohol Screen (PAS) device which registered and/or recorded .23% and .27% Blood Alcohol Concentration (BAO); and/or,

f. making multiple derogatory and degrading comments to California Highway Patrol Officer Keller, including, “Fuck the CHP, fuck highway patrol, Y’all a bunch of bitches, I hope you can sleep at night,” and/or words to that affect; and/or,

g. being arrested for and/or charged with 23152(a) CVC, Driving Under the Influence of Alcohol and Drugs (California Highway Patrol Report Number M2317-03997-525); and/or,

h. pleading “Nolo Contendere” to a charge of 23103(a) California Vehicle Code (CVC), Reckless Driving, and sentenced to probation in addition to numerous court fees, fines, and court-mandated classes.

2. That in violation of Manual of Policy and Procedures Sections 3-01/030.10, Obedience to Laws, Regulations, and Orders [As it pertains to 29805(a) California Penal Code and/or 8103(f)(1) California Welfare and Institutions Code], you are prohibited from owning and/or possessing firearms. The California Department of Justice notified the Los Angeles County Sheriff's Department on September 10, 2018 you are prohibited from owning and/or possessing firearms pursuant to 8103(f)(1) California Welfare and Institutions Code.  

IV2462730

1. That in violation of the Department's Manual of Policy and Procedures Sections 3-01/030.40, Use of Alcohol; and/or 3-01/030.05, General Behavior; and/or 3-01/050.10, Performance to Standards, on or about August 23, 2018, you reported to work and/or was on-duty under the influence of alcohol and/or failed to conform to the work standards established for your position as a Deputy Sheriff Generalist, as evidenced by, but not limited to, the following:

a. drinking alcoholic beverages while on duty; and/or,

b. displaying the objective signs of intoxication and emitting the odor of an alcoholic beverage from your breath when you were contacted by traffic personnel of the Department; and/or,

c. performing poorly in your field sobriety tests; and/or,

d. providing breath samples on the Preliminary Alcohol Screen (PAS) device which registered and/or recorded .19% and .19% Blood Alcohol Concentration (BAC); and/or,

e. being arrested for and/or charged with 23152(a) CVC, Driving Under the Influence of Alcohol and Drugs, and 23152(b) CVC, Driving with a Blood Alcohol Concentration of .08 percent or Greater, (Los Angeles County Sheriff's Department Report Number 918-00043-2003-242).

(AR 3-6.)

H.          Administrative Proceedings

On August 12, 2021, after a civil service hearing, the Hearing Officer made 20 Findings of Fact and eight Conclusions of Law, ultimately recommending that Beas’s discharge be reduced to a 30-day suspension. (AR 249-58.) Thereafter, the Hearing Officer issued Revised Conclusions of Law, noting that the Department failed to establish by a preponderance of the evidence that Beas: (1) was involved in a traffic collision on that date while under the influence of alcohol; (2) provided breath samples on a PAS device on that date registering .23% and .27%; (3) made derogatory or degrading comments to Officer Keller on that date; (4) violated any Department Manual sections as they pertain to Vehicle Code section 23152(a); and (5) violated any of the allegations set forth in Charge No. 2, supra, i.e., pertaining to possession of a firearm. (AR 296-97.)

On September 20, 2022, respondent Los Angeles County Civil Service Commission (“Commission”) adopted the Hearing Officer’s Findings of Fact and ultimately adopted the Hearing Officer’s discipline recommendation by the vote of three commissioners, with two dissents. (AR 319-20.)

II.      Procedural History

             On November 14, 2022, petitioner Department filed a verified Petition for Writ of Mandate. On April 12, 2023, real party in interest Beas filed an Answer. On May 2, 2023, Beas filed the signed verification for the Answer. On May 15, 2023, the Department filed a verified Replication to the Answer.

On December 15, 2023, the Department filed an opening brief. On January 17, 2024, Beas filed an opposition. On January 31, 2024, the Department filed a reply. The Court has received a hard copy of the administrative record, as well as a hard and electronic copy of the joint appendix.

III.     Standard of Review

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

IV.     Analysis

A.           Ministerial Duty

The Department contends that the Commission had a ministerial duty not to reinstate Beas as a Deputy Sheriff, because he was prohibited from possessing firearms between September 10, 2018 and September 11, 2020. (AR 358, 1723-24.) The Department seeks traditional mandate relief under CCP § 1085. (Pet. ¶ 41.)

A writ of mandate pursuant to Code of Civil Procedure section 1085 is available when: (1) the petitioner has “no plain, speedy, and adequate alternative remedy”; (2) the respondent has “a clear, present and usually ministerial duty to perform”; and (3) the petitioner has “a clear, present and beneficial right to performance.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 751-52.) “‘Discretionary acts are those wherein there is no hard and fast rule as to the course of conduct that one must or must not take and, if there is a clearly defined rule, such would eliminate discretion.’ [Citation.] A duty is ministerial when it is the doing of a thing unqualifiedly required. [Citation.]” (Redwood Coast Watersheds Alliance v. State Bd. of Forestry and Fire Protection (1999) 70 Cal.App.4th 962, 970.)

“‘Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion.’ [Citation.]” (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1267, internal editing omitted, quoting Great Western Sav. §& Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 413.)

In support of its position, the Department cites 18 U.S.C. § 922(g)(9), Penal Code § 29800, Civil Service Rule 18.031, and Penal Code § 830.5. None of these statutes or rules require the Commission to terminate the employment of Beas.

            18 U.S.C. § 922(g)(9) states that it is unlawful for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a firearm. Penal Code § 29800 provides that the possession of any firearm by any person convicted of a felony or any person who is addicted to narcotics is a felony. There is no showing that any of these situations is applicable to Beas.  Thus, there was no ministerial duty to discharge Beas for having purportedly violated them.

            Penal Code § 830.5 states that peace officers “may carry firearms only if authorized and under those terms and conditions specified by their employing agency.” To begin with, Penal Code § 830.5 applies only to parole or correctional officers. (See Pen. Code § 830(a-c.).) Moreover, even if Penal Code § 830.5 did apply to Beas, it does not state that peace officers must be discharged if they cannot possess firearms. The statute only provides that employing agencies may dictate the terms upon which the officers may carry firearms. No ministerial duty, i.e., a hard and fast rule requiring discharge, is set forth in Penal Code § 830.5.

            Civil Service Rule 18.031[2] states: “Failure of an employee to perform his or her assigned duties so as to meet fully explicitly stated or implied standards of performance may constitute adequate grounds for discharge, reduction or suspension…. Grounds for discharge, reduction or suspension may also include any behavior or pattern of behavior which negatively affects an employee’s productivity, or which is unbecoming a county employee; or any behavior or condition which impairs an employee’s qualifications for his or her position or for continued county employment.” By providing for either discharge, reduction, or suspension, Civil Service Rule 18.031 does not require discharge when an officer cannot possess a firearm. Accordingly, Civil Service Rule 18.031 does not impose any mandatory duty.

The Department also cites People v. Conley (2004) 116 Cal.App.4th 566 and In re Evans (1996) 49 Cal.App.4th 1263 for the assertion that employment in law enforcement requires the ability to possess a firearm. (See Conley, 116 Cal.App.4th at 575; Evans, 49 Cal.App.4th at 1271 [“Few other occupations require the ability to possess a firearm and none that we can think of is of such a skilled, professional, and typically long-term nature as is law enforcement”].) While language found in both cases may support the general notion that the ability to carry a firearm may be viewed as an essential part of law enforcement, neither case pertain to the issue of whether there is a ministerial duty to discharge a peace officer from employment when the officer cannot legally possess a firearm. Conley pertained to whether a person who was convicted of battery could petition for relief from a 10-year firearm prohibition under then-existing Penal Code § 12021(c)(2), now Penal Code § 29855. (Conley, 116 Cal.App.4th at 571-73.) Evans discussed whether “Penal Code section 12021, subdivision (c) unconstitutionally discriminates among various classes of persons who are subject to a ten-year prohibition on possessing firearms as a consequence of misdemeanor convictions.” (Evans, 49 Cal.App.4th at 1266.) The Evans court found a rational basis for allowing peace officers convicted of offenses arising from troubled personal relationships to appeal a firearms prohibition to incentivize the officers to plead guilty under an agreement for mandatory counseling. (Ibid.)  The Department goes too far in arguing that either case supports their claim of a ministerial duty to discharge Beas. “Cases are not authority for propositions not considered therein.” (State Farm Fire & Casualty Co v. Pietak (2001) 90 Cal.App.4th 600, 614.) 

            For the foregoing reasons, the Department does not demonstrate the existence of any ministerial duty requiring the Commission to deny Beas’s appeal of his discharge.

B.           Propriety of Penalty

The Department also contends that the Commission abused its discretion in reducing Beas’s discharge to a suspension. The Department seeks administrative mandamus relief under CCP § 1094.5. (Pet. ¶ 58.)

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

“Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)

After having reviewed the record, while Beas’s past incidents involving alcohol are no doubt troubling, the Court finds that reasonable minds could agree that a thirty-day suspension, as opposed to a discharge, was appropriate.

In support of discharge, the Department had Chief Coronne Jacob testify. With respect to the December 31, 2017 incident, Chief Jacob testified that Beas exhibited lack of professionalism in interacting with Keller, an officer of another law enforcement agency. (AR 1366.) With respect to the August 23, 2018 incident, Chief Jacob testified that it was a concern for Beas to have been on duty under the influence and with access to weapons. (AR 1370.) With respect to the August 28, 2018 incident, Chief Jacob testified that the 5150 hold resulted in Beas no longer being able to possess a firearm, which is an essential job function of a Deputy Sheriff. (AR 1371.) Chief Jacob testified that, even though Beas was able to have the firearm prohibition lifted, it does not change the fact of what happened. (AR 1372.)

While Chief Jaob’s views are not unreasonable, it is also undisputed that Beas has obtained help to address his alcoholism, including obtaining treatment and attending a support group. (AR 243, 1678, 1680.) Beas has served as a resource for other first responders who face addiction and educated students about the negative impact of alcohol addiction. (AR 386, 1680.) At the time of the administrative hearing, Beas had been sober for one year and seven months. (AR 1680.) Beas appears to have fully acknowledged the wrongfulness of his actions. (See Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 940 [“Fully acknowledging the wrongfulness of [one’s] actions is an essential step towards rehabilitation”].)

            To be sure, alcohol abuse while driving a vehicle or while on duty is extremely serious and warrants discipline. Nevertheless, notwithstanding the seriousness of Beas’s prior, alcohol-related conduct, reasonable minds could consider Beas’s steps to address his alcoholism in finding that future alcohol abuse is less likely to occur. (AR 249; Skelly, 15 Cal.3d at 218 [likelihood of its recurrence is a factor in determining whether agency abused its discretion in determination of penalty].) Moreover, Beas’s firearm prohibition was lifted on September 11, 2020. (AR 253.) The Court (Hon. Laura Streimer, Commissioner) found that Beas “is able to use firearms in a safe and lawful manner and that no current danger to self or others exists.” (AR 358.) The Court found that Beas “may own, control, receive, possess or purchase firearms, pursuant to Welfare and Institutions Code Section 8103.” (AR 358.)

The Department points to no statute or case law requiring the Commission to approve a discharge in cases when an officer may not legally possess a firearm or when an officer abuses alcohol. Under Civil Service Rule 18.031, the Commission had discretion to impose a penalty of suspension instead of discharge.

Based on the foregoing, the Court does not find that the Commission committed a manifest abuse of discretion when imposing a penalty of a thirty-day suspension instead of a discharge.

V.      Conclusion

            The petition is DENIED. Pursuant to Local Rule 3.231(n), real party in interest Victor Beas shall prepare, serve, and ultimately file a proposed judgment. 

However, such judgment make clear that Beas is not entitled to back pay from September 10, 2018 and September 11, 2020 when he was legally prohibited from possessing or using firearms, as consented to by Beas. (Opp. at 19:14-16.) While the Department has not presented any authority requiring a discharge when a peace officer cannot possess firearms, the Court finds that a Deputy Sheriff cannot perform their duties without a firearm. The job description states that Deputy Sheriffs “perform progressively responsible and diverse law enforcement duties such as patrolling an assigned area in a radio car; investigating, preventing and suppressing crime; apprehending public offenders; guarding and transporting prisoners and inmates; serving civil and criminal process; and securing and maintaining order within courtrooms.” (AR 702.) These duties implicitly require possession of a firearm. Enforcing the law implicitly requires possession of a firearm. Although not probative of the issue of the propriety of discipline, the Evans court’s observation that “[f]ew other occupations require the ability to possess a firearm and none that we can think of is of such a skilled, professional, and typically long-term nature as is law enforcement” is persuasive. (Evans, 49 Cal.App.4th at 1271.) Beas’ attempts to rely on his desk duty are not availing because he was performing non-deputy work. (AR 251, 1243.) Accordingly, while the Commission was entitled to reduce the discipline to a suspension, the Court finds that Beas is not entitled to back pay for the period when he was prohibited from possessing and utilizing a firearm.