Judge: Layne H. Melzer, Case: 2022-01274256, Date: 2022-12-07 Tentative Ruling

Petitioner Costa Mesa Police Department

Motion - Other (Petition For Judicial Determination Regarding Return of Firearms)

The Petition brought by the City of Costa Mesa Police Department, pursuant to Penal Code §18400, and directed towards Respondent Barry Quintin Brooks is continued to 1/27/23 at 2PM.

Pursuant to Penal Code §18400(a), “[w]hen a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon seized under this division would be likely to result in endangering the victim or the person who reported the assault or threat, the agency shall so advise the owner of the firearm or other deadly weapon, and within 60 days of the date of seizure, initiate a petition in superior court to determine if the firearm or other deadly weapon should be returned.”

“If a petition is filed under Section 18400, the law enforcement agency shall inform the owner or person who had lawful possession of the firearm or other deadly weapon, at that person’s last known address, by registered mail, return receipt requested, that the person has 30 days from the date of receipt of the notice to respond to the court clerk to confirm the person’s desire for a hearing, and that the failure to respond shall result in a default order forfeiting the confiscated firearm or other deadly weapon.” (Penal Code §18405(a).)

The applicable code provides that “the person’s last known address shall be presumed to be the address provided to the law enforcement officer by that person at the time of the domestic violence incident,” but that “the agency shall make a diligent, good faith effort to learn the whereabouts of the person and to comply with these notification requirements,” where the person no longer resides at the last known address. (Penal Code §18405(b) and (c).)

Here, the Petition was timely filed precisely 59-days after the date of seizure (¶2, ¶12 and ¶20 of Brown Declaration; See also “Receipts and Notices of Rights for Confiscated Firearms.”); however, there is no record of service of the instant Petition or any notice which otherwise complies with Penal Code §18405(a).

Neither the Petition nor the accompanying Declarations include a Proof of Service and, similarly, no Proof of Service has been separately filed.

At most, the documents filed include a signed “Receipt and Notice of Rights for Confiscated Firearms,” pursuant to Penal Code §18250.  (ROA No. 4.) This document is required upon confiscation of weapons; however, the document does not provide notice pursuant to Penal Code §18405. (Id.)  Indeed, relevant to this provision, the Receipt merely states: “If, within this time, the Costa Mesa Police Department believes the return of these items will likely result in endangering the victim or person reporting a domestic violence assault, you will be advised, and within 60 – 90 days of the seizure a petition will be initiated in the Superior Court to determine if these items should be returned (18400 P.C.).” (Id.)

As there is nothing within the record to demonstrates adequate service or notice pursuant to Penal Code §18405(a), this hearing is continued to 1/27/23 at 2PM.  This date is calculated to allow the 30-day period referenced by Penal Code §18405.  To ensure sufficient time for the referenced 30-day period, Petitioner is advised to effect service immediately.  Delays in service may necessitate a further continuance.  Additionally, Petitioner shall file a Proof of Service which demonstrates compliance with the above, no later 9 court-days prior to the continued hearing date.