Judge: Curtis A. Kin, Case: 23STCP04543, Date: 2024-06-27 Tentative Ruling

Case Number: 23STCP04543    Hearing Date: June 27, 2024    Dept: 86

            Respondents City of Los Angeles, Los Angeles Police Department and Dominic Choi demur to all three causes of action in the Verified First Amended Petition for Writ of Mandate.

I.       Factual Allegations

As alleged, respondent Los Angeles Police Department (“LAPD”) has a policy of conducting “high-risk” or “felony” traffic stops when its officers lack probable cause and the only basis for reasonable suspicion is that the vehicle may be stolen. (FAP ¶¶ 1, 15-19.) During high-risk traffic stops, LAPD officers are trained to: (1) respond with at least seven to more than a dozen officers and a police helicopter; (2) hold the driver at gunpoint by several officers; (3) order the occupants of the vehicle to lie face down on the street spread-eagled, i.e., with arms and legs extended; (4) search the vehicle; and (5) handcuff each occupant before investigating whether the vehicle was stolen. (FAP ¶ 20.) Officers are trained to use these tactics even when the occupants obey the officers’ comments and do not resist in any way. (FAP ¶ 21.) Officers are also trained to point their firearms toward the vehicle while a suspect is still in the vehicle. (FAP ¶ 22.) After the suspect exits the vehicle, officers are trained to hold their firearms in the low ready position, i.e., toward the suspect below the suspect’s hands. (FAP ¶ 22.)

            LAPD trains its officers to conduct a high-risk traffic stop when the California Law Enforcement Telecommunication System (“CLETS”)—a system of electronic databases maintained by the California Department of Justice—indicates that a vehicle may be stolen or that the vehicle’s license plate is registered to another vehicle. (FAP ¶ 23.) LAPD does not have its officers confirm the CLETS information before conducting a high-risk traffic stop, even though confirmation is required by California Department of Justice regulations. (FAP ¶¶ 24, 35.) According to training provided by the Commission on Peace Officer Standards and Training (“POST”), an agency created within the California Department of Justice, the fact that a vehicle was identified by CLETS as having been stolen is insufficient to establish probable cause to conduct a search or to place an individual under arrest. (FAP ¶¶ 31, 34.)

            Petitioners allege the risk presented during a traffic stop of a suspected stolen vehicle is low. (FAP ¶ 26.) LAPD has not identified any traffic stop based on suspicion of a stolen vehicle where any officer was injured. (FAP ¶ 26.) Weapons were seized in fewer than one percent of 8,000 stops between 2018 and 2022. (FAP ¶¶ 3, 27.) In 74 percent of stops, the vehicle turned out not to be stolen. (FAP ¶¶ 3, 28.) Between 2018 and 2022, Black Angelenos, who represent 8 percent of the population of the City of Los Angeles, were subjected to 18 percent of traffic stops based on suspicion of a stolen vehicle. (FAP ¶ 30.)

            Petitioner Community Coalition is a non-profit organization that trains activists and organizers and promotes racial justice. (FAP ¶ 7.) Petitioner Black Lives Matter Los Angeles is part of a nationwide network dedicated to racial justice, Black organizing, and ending police brutality. (FAP ¶ 8.) Petitioner Sheilanee Sen previously brought a lawsuit, now settled, against the City of Los Angeles over a high-risk traffic stop conducted by an officer of the Los Angeles Police Department (“LAPD”). (FAP ¶ 9.) Petitioner Sen seeks to prevent LAPD from subjecting motorists suspected only of stealing a vehicle to high-risk traffic stops. (FAP ¶ 9.)

            Petitioners contend that the policy as alleged violates the Fourth Amendment to the United States Constitution and Article 1, Section 13 of the California Constitution—both of which prohibit unreasonable seizures, including arrests, without a warrant or probable cause. (FAP ¶ 2.)

II.      Procedural History

          On December 19, 2023, petitioners filed a Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief. After respondents demurred to the Petition, petitioners filed a Verified First Amended Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief.

            On April 5, 2024, respondents filed a demurrer to the First Amended Petition. On April 26, 2024, petitioners filed an opposition. On May 2, 2024, respondents filed a reply.

III.     Evidentiary Matters

            Petitioner’s requests for judicial notice are GRANTED, as follows:

            Exhibit A - “Event 4 – Traffic Enforcement, Session 13, revised November 13, 2019,” which is an instructor manual available on LAPD’s website at https://www.lapdonline.org/ev04-traffic-enforcement/. (Evid. Code § 452(b), (c); Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 599 [judicial notice taken of official acts of local agencies].)

            Exhibit B - California Commission on Peace Officer Standards and Training’s “Basic Course Workbook Series, Student Materials, Learning Domain 22, Vehicle Pullovers, Version 3.2,” which is available at https://post.ca.gov/portals/0/post_docs/basic_course_resources/workbooks/LD_22_V-3.2.pdf. (Evid. Code § 452(b), (c); Childs v. State of California (1983) 144 Cal.App.3d 155, 162 [official acts of state subject to judicial notice].)

            Exhibit C – Second Amended Complaint for Damages in Sheilanee Sen et al. v. City of Los Angeles et al., United States District Court, Central District of California, Case No. 2:21-Cv-02326 (Sen). (Evid. Code § 452(d).)

            Exhibit D – Order re: Motions for Summary Judgment in Sen. (Evid. Code § 452(d).)

Exhibit E – Settlement Agreement and Release of All Claims in Sen (Evid. Code § 452(h); Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666 [judicial notice taken of settlement agreements, which were considered on demurrer because no factual dispute existed as to their contents].)

            Exhibit F – Joint Stipulation for an Order of Dismissal of Entire Action with Prejudice in Sen. (Evid. Code § 452(d).)

            Exhibit G – Order re: Joint Stipulation for an Order of Dismissal of Entire Action with Prejudice in Sen. (Evid. Code § 452(d).)

IV.     Analysis

A.           First and Second Causes of Action – Writs of Mandate Pursuant to CCP § 1085

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

            With respect to the first two causes of action, petitioners seek a peremptory writ of mandate pursuant to CCP § 1085 directing respondent to:

cease to enforce the policy, practice, custom, and/or training of conducting high-risk traffic stops without probable cause and where the only basis of reasonable suspicion is that the vehicle may be stolen [ ], and without any of the special circumstances required by the Ninth Circuit in [Green v. City and County of San Francisco (9th Cir. 2014) 751 F.3d 1039, 1047], such as: 1) the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight; 2) the police have information that the suspect is currently armed; 3) the stop closely follows a violent crime; or 4) the police have information that a crime that may involve violence is about to occur.

(FAP ¶ 55.)

Petitioners allege that respondents have a duty to comply with the Fourth Amendment of the United States Constitution and Article 1, Section 13 of the California Constitution—both of which prohibit unreasonable seizures. (FAP ¶¶ 40-42, 45-47.) Respondents argue that petitioners have not adequately alleged any ministerial duty.

In the First Amended Petition, petitioners rely on Green v. City and County of San Francisco (9th Cir. 2014) 751 F.3d 1039.[1] In Green, the Ninth Circuit held that a police department and sergeant were not entitled to summary judgment on the plaintiff’s claim for false arrest. The Ninth Circuit examined when a traffic stop transforms from a valid investigatory stop under Terry v. Ohio (1968) 392 U.S. 1 into an arrest. (Green, 751 F.3d at 1047.) That determination turns on the intrusiveness of the methods used during the stop and whether the methods were reasonable considering the specific circumstances of the stop. (Id. at 1047, citing Washington v. Lambert (9th Cir. 1996) 98 F.3d 1181, 1185.) “If the stop amounted to an arrest, it would be unlawful absent probable cause.” (Green, 751 F.3d at 1039; see also Washington, 98 F.3d at 1186 [“If we conclude that the detention was only a ‘stop’ it will be lawful even though there was no probable cause. If, under the same circumstances, we term it an arrest, it will not be lawful in the absence of such cause”].)

Petitioners allege that a high-risk traffic stop—one involving at least seven police officers, drawing of weapons toward the driver and occupants of the vehicle, and handcuffing of each occupant—always constitutes an arrest requiring probable cause. (FAP ¶¶ 2, 20, 22.) Petitioners also allege that suspicion of a stolen vehicle alone is insufficient to warrant a high-risk traffic stop. (FAP ¶¶ 11, 34, 38.)  For pleading purposes, the Court agrees that petitioners have adequately a policy for which there be a constitutional duty to cease.

In Green, the police pulled the plaintiff over. (Green, 751 F.3d at 1043.) Four to six officers were involved in the stop. (Ibid.) The officers pointed their weapons at the plaintiff. (Ibid.) The sergeant directed plaintiff to lower herself to her knees and handcuffed her. (Ibid.) Due to knee problems, the plaintiff, who weighed 250 pounds, had trouble lowering herself to the ground and standing back up. (Ibid.) The plaintiff did not resist while being detained. (Ibid.)

The defendants argued that the degree of force was justified based solely on the existence of a stolen vehicle. (Id. at 1048.) The Ninth Circuit disagreed, holding that the fact that the plaintiff “was stopped on suspicion of a stolen vehicle does not by itself demonstrate that she presented a danger to the officers.” (Ibid.) The Ninth Circuit examined the Washington factors and found that they “count[ed] against a finding that the officers’ conduct was a reasonable response to safety concerns.” (Ibid. [“(1) it is uncontested that Green was compliant with law enforcement at all times; (2) the police had no specific information that Green was armed; (3) the stop did not closely follow a violent crime; and (4) the police did not have information that a violent crime was about to occur”].) The police also failed to visually confirm that the license plate number provided by the automated reader matched the license plate number on the plaintiff’s vehicle, indicating that the police failed to confirm that the vehicle was stolen. (Id. at 1042-43, 1045.) Because as many as six officers detained the plaintiff, who was alone, handcuffed, and unable to stand up without assistance, the plaintiff did not pose any threat justifying the use of high-risk tactics.[2] (Id. at 1048.)

Based on the writ of mandate proposed by petitioners, they have sufficiently alleged the existence of a ministerial duty. Petitioners allege the existence of a policy requiring a high-risk traffic stop based only on the suspicion that a vehicle is stolen. (FAP ¶¶ 1, 5, 15, 18; see also City RJN at 6, 11 [high risk pullover used where officer has reasonable belief that vehicle occupant or occupants “have committed a felony”].) The Ninth Circuit in Green held that the suspicion of a stolen vehicle did not by itself warrant the use of high-risk tactics. (Green, 751 F.3d at 1048.)

Respondents contend that the four factors set forth in Washington require a level of discretion that precludes issuance of a traditional writ of mandate. “[Traditional] mandamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner.” (Morris v. Harper (2001) 94 Cal.App.4th 52, 62.) The four Washington factors arguably involve the exercise of discretion by police officers in determining whether (1) a suspect’s actions at the scene pose a “reasonable possibility” of danger or flight, (2) the police have information that sufficiently indicates that the suspect is currently armed, (3) the stop is sufficiently close to a violent crime, and (4) the police have information that sufficiently indicates that a violent crime may occur. (See Green, 751 F.3d at 1047.) Moreover, the Washington factors are not exhaustive. (Ibid.) The factors “should all be considered in light of the specificity of the information law enforcement has to suggest both that the individuals are the proper suspects and that they are likely to resist arrest or police interrogation. [Citation.] The number of police officers present is also highly relevant. [Citation.]” (Ibid.)

Nevertheless, the fact that police officers may be required to exercise discretion in determining whether the suspect in a traffic stop poses a threat to their safety does not preclude the existence of a ministerial duty as alleged in this case. “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279, quoting Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, internal quotations omitted.) Here, petitioners allege a given state of facts—the lack of legitimate safety concerns, based on the Washington factors and other circumstances indicating that a suspect does not pose any threat. (FAP ¶ 2; see Green, 751 F.3d at 1047, quoting Washington, 98 F.3d at 1186 [four Washington factors probative of “the ultimate inquiry of whether the officers’ conduct was a ‘reasonable response to legitimate safety concerns on the part of the investigating officers’”].) Absent any threats to safety or any of the other Washington factors and concerns, where the only basis for pulling a suspect over is suspicion that the vehicle may be stolen, in accordance with Green, a high-risk traffic stop may violate the federal and state constitutional prohibition against unreasonable seizures.

In contending otherwise, respondents point out that the U.S. District Court in Sheilanee Sen et al. v. City of Los Angeles et al., Case No. 2:21-Cv-02326 found that a high-risk stop based solely on a stolen vehicle did not violate clearly established Fourth Amendment law.  That is not quite accurate. In Sen, the plaintiffs argued that certain police officers were not entitled to qualified immunity because a jury could find that the involved police officers conducted a high-risk stop based solely on suspicion of a stolen vehicle. (RJN Ex. D at 186.)  In granting summary judgment to those officers based on a qualified immunity, the district court explained: “[E]ven if these high-risk tactics did amount to a de facto arrest, the officers would nonetheless be entitled to qualified immunity because there is no case law that ‘clearly establishes that a high-risk stop is an unreasonable level of intrusiveness for a suspected stolen vehicle.’” (Ibid.) “An officer will be denied qualified immunity in a § 1983 action only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer’s conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in that situation.” (Torres v. City of Madera (9th Cir. 2011) 648 F.3d 1119, 1123.)

The district court’s observation in Sen relates to the second prong, which concerns an officer’s reasonable belief as to the constitutionality of an action or policy and not whether such action or policy is constitutional.  In finding that the officers’ beliefs were reasonable as to the constitutionality of their conduct, the district court noted that the question of whether a high-risk stop based solely on suspicion of a stolen vehicle has not clearly been established as either constitutional or unconstitutional.  Whether officers could reasonably believe that suspicion of a stolen vehicle by itself is sufficient to support the constitutionality of a high-risk stop is a question entirely distinct from whether conducting a high-risk stop under such circumstances is constitutional. Thus, even if a court (such as in Sen) has found that police officers could reasonably believe such high-risk stops are permissible for purposes of invoking qualified immunity, that finding does not squarely address the determination at issue in this case—namely, whether the alleged policy being challenged violates the federal and state prohibitions against unreasonable seizures.

            Because petitioners allege the existence of a policy that may violate the United States and California Constitutions, the demurrer to the first and second causes of action are OVERRULED.

B.           Third Cause of Action – Violation of CCP § 526(a) Based on Illegal Expenditure of Public Funds

Respondents argue that the third cause of action fails because the subject policy is not unlawful. “[T]he term ‘waste’ as used in [CCP] section 526a means something more than an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.” (City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545, 555.) “An injunction lies to prevent ‘... wholly void and inoperative ...’ acts.” (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027, quoting Sundance v. Municipal Court, supra, 42 Cal.3d 1101, 1138.)

Petitioners Community Coalition and Sen seek to enjoin the enforcement of the subject policy as an illegal expenditure of public funds. (FAP ¶¶ 7, 9, 50, 53.) For the reasons discussed above with respect to the first and second cause of action, petitioners allege sufficient facts which, if true, would establish that the subject policy violates the Fourth Amendment of the United States Constitution and Article 1, Section 13 of the California Constitution.

The demurrer to the third cause of action is OVERRULED.

C.           Effect of Petitioner Sen’s Release

Respondents argue that petitioner Sen signed a release in the Sen action that “fully and forever release[d] and discharge[d] DEFENDANT CITY OF LOS ANGELES…from any and all bodily injury claims, liability, causes of action, demands…and obligations of any nature…whether presently known or unknown…” (Ugaz Decl. Ex. E at § 1.2.) In the Sen action, Sen alleged that LAPD officers deprived her of her Fourth Amendment rights by conducting a high-risk stop based only on suspicion of a stolen vehicle, even though the vehicle was not actually stolen. (RJN Ex. C at ¶¶ 63, 64.)

The scope of the release is for claims that Sen “may have, from the beginning of time to the date of this SETTLEMENT AGREEMENT, against the CITY OF LOS ANGELES…arising out of, connected to, or in any way related to the facts, matters, allegations, and/or issues alleged in the ACTION.” (Ibid.) The settlement agreement was signed between July 27 and October 4 of 2022. Accordingly, any claim that Sen may have after the execution of the settlement agreement is not covered by the release.

The First Amended Petition was filed on March 6, 2024. Petitioners allege that the subject policy is still operative. (¶¶ 1, 2.) “‘[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.’” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 166, quoting Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 100-01.) For the reasons set forth above, defendants have a duty to comply with the federal and state constitutional prohibitions against unreasonable seizures. Petitioners, including Sen, may seek mandamus relief to enforce the prohibitions.

V.      Conclusion

            The demurrer to the First Amended Petition is OVERRULED in its entirety.[3] Respondents City of Los Angeles, Los Angeles Police Department, and Dominic Choi are ordered to file an answer to the First Amended Petition within 10 days.