Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles, Los Angeles County Super. Ct. No. BS117003 James C. Chalfant, Judge. Reversed and remanded with instructions.
Lackie, Dammeier & McGill, Michael A. McGill, Jessica L. Kirschbraun, Caroline Diaz for Petitioner and Appellant.
California Department of Corrections and Rehabilitation, Debra L. Ashbrook, Chief Counsel, Stephen A. Jennings, Staff Counsel IV, for Defendant and Respondent.
MOSK, J.
INTRODUCTION
Petitioner and appellant Fred Owens (petitioner) filed a petition for writ of mandate in the trial court seeking to compel defendant and respondent California Department of Corrections and Rehabilitation (the Department) to hold a “good cause” hearing under Penal Code section 12027.1 to review the Department’s denial of petitioner’s application for a “carrying a concealed weapon endorsement” (CCW endorsement). The trial court denied the petition on the grounds of laches.
All further statutory references are to the Penal Code unless otherwise indicated.
Government Code section 19572, subdivisions (d), (f), (o), (r) and (t) state: “Each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list: [¶]... (d) Inexcusable neglect of duty.... [¶] (f) Dishonesty. [¶] (o) Willful disobedience.... [¶] (r) Violation of the prohibitions set forth in accordance with Section 19990.... [¶] (t) Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person’s employment.” Government Code section 19990 states in part: “A state officer or employee shall not engage in any employment, activity, or enterprise which is clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties as a state officer or employee. [¶] Each appointing power shall determine, subject to approval of the department, those activities which, for employees under its jurisdiction, are inconsistent, incompatible or in conflict with their duties as state officers or employees. Activities and enterprises deemed to fall in these categories shall include, but not be limited to, all of the following: [¶] (a) Using the prestige or influence of the state or the appointing authority for the officer’s or employee’s private gain or advantage or the private gain of another. [¶] (b) Using state time, facilities, equipment, or supplies for private gain or advantage. [¶] (c) Using, or having access to, confidential information available by virtue of state employment for private gain or advantage or providing confidential information to persons to whom issuance of this information has not been authorized. [¶] (d) Receiving or accepting money or any other consideration from anyone other than the state for the performance of his or her duties as a state officer or employee. [¶] (e) Performance of an act in other than his or her capacity as a state officer or employee knowing that the act may later be subject, directly or indirectly to the control, inspection, review, audit, or enforcement by the officer or employee. [¶] (f) Receiving or accepting, directly or indirectly, any gift, including money, or any service, gratuity, favor, entertainment, hospitality, loan, or any other thing of value from anyone who is doing or is seeking to do business of any kind with the officer’s or employee’s appointing authority or whose activities are regulated or controlled by the appointing authority under circumstances from which it reasonably could be substantiated that the gift was intended to influence the officer or employee in his or her official duties or was intended as a reward for any official actions performed by the officer or employee. [¶] (g) Subject to any other laws, rules, or regulations as pertain thereto, not devoting his or her full time, attention, and efforts to his or her state office or employment during his or her hours of duty as a state officer or employee.”
On appeal, petitioner contends that the trial court erred because the Department failed to make the required showing of prejudice in support of its laches defense. In the alternative, petitioner contends that even if laches barred him from seeking writ relief on the denial of his original application for a CCW endorsement, he was not barred by laches from seeking writ relief on the denial of his subsequent applications for a CCW endorsement. The Department counters that it made an adequate showing of prejudice, that petitioner was not entitled to file subsequent applications for a CCW endorsement, and that, in any event, relief on the writ petition was barred under the alternative defense of the statute of limitations.
We hold that because the Department failed to make the requisite showing of prejudice, the trial court erred in denying the writ petition under the doctrine of laches. We also hold that the trial court correctly concluded that the statute of limitations defense had been forfeited for failure to raise it properly. Accordingly, we reverse the trial court’s judgment denying the writ petition and remand the matter to the trial court with instructions to hold a further hearing to determine whether petitioner has a right to a good cause hearing under section 12027.1.
FACTUAL AND PROCEDURAL BACKGROUND
With minor exceptions not relevant here, the Department adopts petitioner’s statement of facts, which statement was based on the allegations of the verified petition for writ of mandamus and the exhibits submitted in support of the petition. We rely on the facts as agreed upon by the parties.
Penal Code section 830.5, subdivision (c) stated in part when plaintiff retired, “The following persons may carry a firearm while not on duty:... any employee of the Department of the Youth Authority having custody of ward....” (Stats. 1998, ch. 338, § 3.)
Petitioner commenced employment with the Department (at that time, the Department of Youth Authority) on August 9, 1976, and was appointed as a Youth Counselor. On June 25, 1980, petitioner was appointed to a Senior Youth Counselor position, and on May 18, 1987, he was promoted to the position of a Parole Agent 1.
On November 4, 1999, the Department revoked petitioner’s license to carry a firearm citing Parole Services Manual section 2800 and Youth Authority Manual sections 5700 through 5780. The revocation included both on and off duty firearms. The revocation also provided that petitioner’s license to carry a firearm may be reinstated upon future evaluation.
On April 13, 2000, petitioner was dismissed as a Parole Agent from the Department based upon violations of Government Code sections 19572, subdivisions (d) (inexcusable neglect of duty), (f) (dishonesty), (o) (willful disobedience), (r) (violations of the prohibitions set forth in accordance with Government Code section 19990), and (t) (other failure of good behavior). Petitioner appealed his dismissal to the State Personnel Board and was given a full evidentiary hearing. In its March 16, 2001, decision, the Board modified the penalty from a dismissal to a demotion from the classification of Parole Agent 1 to the classification Senior Youth Correctional Counselor.
On or about April 16, 2002, the California State Personnel Board approved a Stipulation for Settlement (or “Stipulation and Release”) between petitioner and the Department that, inter alia, allowed petitioner to retire from the Parole Agent 1 classification effective May 1, 2001, in exchange for petitioner’s agreement not to work for, apply to, or accept employment with the “Youth and Adult Corrections Agency, including, but not limited to the Department and the Department of Corrections.” The Department also agreed to remove the Notice of Adverse Action, and all supporting documentation, from petitioner’s personnel file as of May 1, 2001.
Thereafter, petitioner filed the original application for a CCW endorsement. The Department denied that application on June 4, 2002, citing sections 12027 (exemption, inter alia, for honorably retired peace officer from prohibitions on carrying concealed weapon) and 12031, subdivision (b)(1) (penalties for carrying concealed weapon not applicable to, inter alia, honorably retired peace officer). The Department also cited from “Conditions and Requirements to Carry a Concealed or Loaded Firearm” (“endorsement shall not be authorized for a correctional peace officer returning under other than honorable conditions....”). The denial letter included instructions to petitioner regarding his appeal rights, specifically advising that to appeal the denial, he would have fifteen (15) calendar days to submit an appeal in writing stating an explanation to the Director as to why the denial was not warranted.
On June 14, 2002, petitioner’s attorney wrote a letter to the Director requesting a reversal of the June 4, 2002, denial. He did not specifically request a hearing. The trial court viewed the letter as the equivalent of a request for a hearing. In his letter, petitioner’s attorney argued, among other things, that the Department based its denial on false information that petitioner was under investigation at the time his retirement was deemed effective. The Department did not respond to the June 14, 2002, appeal letter, and petitioner did not have an opportunity to be heard regarding the original application or the denial of it. Petitioner, however, did not further pursue the appeal from the denial of his original application or seek writ relief in the trial court.
Instead, on November 16, 2004, petitioner again applied to the Department, incorrectly stating it was an “Initial application for endorsement to carry a concealed firearm.” He did not explicitly request a hearing. On June 28, 2005, the Department denied petitioner’s second application. The denial letter cited the “good cause” definition in the Department of the Youth Authority Administrative Manual section 5828 that reads: “The retiree is discovered to have been involved in act(s) of misconduct which occurred during regular service that may have reasonably resulted in adverse action.” The denial letter also stated that if petitioner wanted to appeal the decision, he would need to submit a written appeal within fifteen (15) calendar days from the date petitioner received the letter.
On July 7, 2005, petitioner’s attorney submitted a letter to the Department requesting an appeal of the June 28, 2005, denial of the second application. In this appeal, petitioner sought a description of the specific acts of misconduct alluded to in the Department’s June 28, 2005, letter. No hearing was specifically requested. Again, the trial court stated that the letter should be deemed a request for a hearing. On July 21, 2005, the Department denied petitioner’s appeal of the second application. This denial cited sections 12027 and 12031, specifically stating that an employing agency can deny or revoke a CCW endorsement for “good cause.” The letter then provided the Department of Youth Authority Administrative Manual section 5828 definition of “good cause” as used in the denial letter of June 28, 2005. The Department cited the May 2000 Notice of Adverse Action (dismissal “for numerous acts of misconduct”) as the reason for the “good cause” denial. The Department concluded this letter by stating that if petitioner had any new information to be considered, he should submit a request for reconsideration.
On August 3, 2005, petitioner personally submitted a letter seeking reconsideration of the denial of the second application on the grounds that the Department had relied on false information. Petitioner explained that he was not under investigation at the time he submitted his second application, he voluntarily retired, and that the Notice of Adverse Action had been withdrawn by the Department. On August 25, 2005, the Department sent a letter to petitioner stating that no new information was provided relevant to the decision regarding a CCW endorsement, and that “good cause” existed for the denial of the second application.
On November 18, 2005, petitioner’s attorney submitted a letter to the Department requesting that a hearing be conducted pursuant to section 12027.1, subdivision (d) before a three (3) member panel board. Petitioner also requested that “good cause” be determined at the time and date of the hearing because determining “good cause” from time of the Notice of Adverse Action in 2000 would be too remote.
On August 10, 2006, the Department sent a letter to petitioner granting the request for a “good cause” hearing. In this letter, the Department notified petitioner of the members of the three (3) panel board chosen by the Department, and gave petitioner information on scheduling the hearing. On September 12, 2006, the Department scheduled a “good cause” hearing to take place in Glendale, California. But the Department postponed the hearing pending verification of the issue of when “good cause” should be determined, specifically, whether it should be determined by looking back at 1999 when petitioner’s permit was originally revoked, or at the time petitioner was served Notice of Adverse Actions in April 13, 2000, or at the time of the “good cause” hearing (September 12, 2006), as petitioner requested. Petitioner did not have an opportunity to be heard at this hearing prior to its postponement.
On March 14, 2007, the California Correctional Peace Officers Association (CCPOA), on behalf of petitioner, sent a letter to the Department inquiring whether the issue as to when “good cause” would be determined had been resolved and seeking to reschedule a hearing. The latter stated, “appellant is now, with this letter, submitting a new request to have his revoked CCW permit of November 4, 1999 be reinstated.” There is no record of a response to this letter by the Department.
On February 22, 2008, the CCPOA on behalf of petitioner sent a letter to the Department requesting a CCW endorsement and a “good cause” hearing. The letter also stated, “please consider appellant’s new request for reinstatement of his CCW.” On May 28, 2008, the Department responded denying both the request for a CCW endorsement and the request for a “good cause” hearing. In denying the request for a CCW endorsement, the letter cited to the Department’s policies codified in the Department Operational Manual and case law stating that an employee cannot reapply for a CCW endorsement once it has been denied or revoked. The letter cited to the Department of Youth Authority Administrative Manual section 5828, and the Notice of Adverse Action of April 13, 2000, to show the acts of misconduct that supported the finding of “good cause.” Additionally, the letter denied the request for a “good cause” hearing, stating that under section 12027.1, defendant had no obligation to provide petitioner with a “good cause” hearing.
While employed with the Department, petitioner was at all times a peace officer within the meaning of section 830.5, and was deemed to have retired honorably from his position.
PROCEDURAL BACKGROUND
On September 17, 2008, petitioner filed his verified petition for writ of mandamus seeking an order compelling the Department to conduct a hearing before a three-member panel to review the propriety of the denial of his application for a CCW endorsement. In addition to being verified under oath, the petition included 16 documentary exhibits. The Department responded by filing an answer and a short memorandum of points and authorities, but did not submit any declarations, documentary exhibits, or other evidence in support of its opposition to the petition. The Department in the answer pleaded two affirmative defenses: laches and untimeliness “under any conceivable statute of limitations.”
At the hearing on the petition, the trial court denied the petition for a writ on the grounds that a retired peace officer may only apply once for a CCW endorsement and that petitioner’s claim that he was denied his right to a hearing was barred by the doctrine of laches. In its tentative ruling, which it adopted, the trial court stated, “Owens clearly is guilty of laches in failing to seek mandamus to compel the Department to grant him a three-member hearing board on the denial of his 2002 application.” The trial court said that petitioner is not barred by laches as to his 2004 application, but that he could not reapply for the CCW endorsement. “His laches with respect to the first denial is binding; he cannot reapply and seek a three-member hearing when a new application is denied.”
On appeal petitioner contends that laches does not apply because there was no showing of prejudice; the Board is estopped from asserting laches because of the Department’s representations about appeal rights and procedures; a retired peace officer may apply more than once for a CCW endorsement, and therefore laches does not bar petitioner’s claim to a hearing on his second application; and petitioner is entitled to a hearing. The Board contends that the trial court correctly applied the laches doctrine
DISCUSSION
A. Standard of Review
Statutory interpretation is a question of law that is reviewed de novo. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) We review a trial court’s laches ruling under the substantial evidence standard of review. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67.)
B. Laches
In this appeal, the parties deal primarily with the issues related to laches-the ground upon which the trial court rendered its determination. Thus, the trial court denied petitioner’s petition for a writ of mandamus to “conduct a ‘good cause’ hearing pursuant to Penal Code section 12027.1(d)” because the laches defense barred petitioner’s claim for relief. Petitioner did not seek to establish that he had a right to the CCW endorsement because no hearing had taken place. Rather, he just sought the hearing and a determination that “good cause” “is to be determined at the time the hearing is to take place.” Accordingly, as the trial court denied relief based on laches, we must resolve that issue.
Petitioner contends that the Department had the burden on the affirmative defense of laches to show prejudice from the delay of which it complained. According to petitioner, the Department’s opposition to his petition for writ of mandate failed to include any evidence that petitioner’s delay in seeking writ relief caused the Department prejudice.
“The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay. As pointed out in Brown v. State Personnel Board (1941) 43 Cal.App.2d 70, 79 [110 P.2d 497]: ‘If because of his delay in seeking his remedy, without offering a satisfactory explanation for the delay, a prejudice results to his adversary, he will be precluded from enforcing his demand. It is not so much a question of the lapse of time as it is to determine whether prejudice has resulted. If the delay has caused no material change in status quo, ante, i.e., no detriment suffered by the party pleading the laches, his plea is in vain.’ These requirements apply equally to the defense if raised by a public agency.” (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359-360 [footnotes omitted] (Conti); Vernon Fire Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d 710, 717; see also People v. Koontz (2002) 27 Cal.4th 1041, 1087-1088 [“laches is an equitable defense to the enforcement of a stale claim and requires a showing of unreasonable delay plus either the plaintiff’s acquiescence in the act complained of or prejudice to the defendant resulting from the delay”].)
As established in Conti, supra, 1 Cal.3d at page 362, prejudice is not presumed from an unreasonable delay in asserting a claim for relief. Rather, because laches is an affirmative defense, the party raising it has the burden of proving that defense. “[L]aches constitutes an affirmative defense which does not reach to the merits of the cause; the courts, in placing the burden of proving laches on the defendant, do so in aid of the salient policy favoring resolution of controversies on their merits.” (Id. at p. 361.) Moreover, when the defendant asserting laches is a public entity defending against a claim by an employee, a further policy consideration also supports the rule that a defendant claiming laches has the affirmative burden of proving prejudice. “The employing agency which enjoys better access to data respecting prejudice should bear the burden of producing the pertinent evidence.” (Ibid.)
In response to petitioner’s writ of mandate petition, the Department submitted an unverified answer that alleged, inter alia, an affirmative defense based on laches which stated: “The petition is untimely and Respondents have suffered prejudice thereby through the passage of time, amounting to six to nine years, in that critical documents may no longer be available, witnesses may not be available, and the memory of those witnesses that are available will have faded.” The memorandum of points and authorities in opposition to the petition, however, made no mention of prejudice and the Department did not submit any evidence in support of its opposition. Moreover, at the hearing on the petition, the Department did not make any argument in support of a finding of prejudice.
At the hearing on the petition for writ of mandate, the trial court provided the parties with a tentative ruling that eventually became the ruling of the court. Although the tentative ruling discussed the issue of laches and concluded that laches barred petitioner from the relief he was seeking from the trial court, the ruling did not make a finding on, or even mention, prejudice. Nor did the trial court raise or discuss the issue of prejudice during the hearing on the petition.
Because the Department failed to meet its burden of demonstrating prejudice arising from the delay of which it complains, the trial court erred by nevertheless finding that the petition was barred under the doctrine of laches.
On appeal, the Department argues for the first time that it was prejudiced because the delay raised a “substantial question... regarding when the facts supporting ‘good cause’ for the denial of the application should be tested: at the time of the [original] application or at the time of a hearing to be held sometime in the future?” The Department also claims that petitioner raised another type of prejudice in his opening brief: whether “recent amendments to Penal Code section 12027.1, not effective until January 1, 2010, have somehow demonstrated that the previous version of the statute was motivated by an intent to allow multiple applications for a concealed firearm permit and not a ‘one and done’ system as found by the [trial court]....” (See fn. 3, post.) According to the Department, “[t]his legal complication would not have arisen had [petitioner] timely sought review of the denial of his application and has, thus, caused prejudice to the Department.” Nothing surrounding petitioner’s argument concerning the effect of an amendment to the statute could have prejudiced the Department because we did not conclude that the amendment altered our interpretation of the statute. (See fn. 3 post.)
The Department did not raise in the trial court the issue as to the timing of the test with respect to whether there was prejudice from the delay in filing a petition for a writ. By failing to do so, the Department is barred under the forfeiture rule from raising that issue for the first time on appeal. “The forfeiture rule generally applies in all civil and criminal proceedings. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458–459; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 37, pp. 497–500.) The rule is designed to advance efficiency and deter gamesmanship. As we explained in People v. Simon (2001) 25 Cal.4th 1082 [108 Cal.Rptr.2d 385, 25 P.3d 598] (Simon): ‘“‘“The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had....”’ [Citation.] ‘“No procedural principle is more familiar to this Court than that a constitutional right, ” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”...’ [Citation.] [¶] ‘The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 [204 P. 33]...: “‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’”’ [Citation.]” (Fn. omitted; [citations].)’ (Simon, supra, 25 Cal.4th at p. 1103, italics added.)” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265.)
The Department also contends for the first time on appeal that petitioner acquiesced in the denial of his application for a concealed weapons permit, which acquiescence is an alternative basis upon which to base a finding of laches. But, again, the Department did not raise this contention in the trial court. Therefore, the Department’s acquiescence argument is forfeited on appeal along with its prejudice arguments. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at pp. 264-265.)
Because there was a failure of proof as to laches, upon remand, the Department is not entitled to a further opportunity to establish laches by showing prejudice. As we reverse the finding of laches for insufficiency of the evidence, the Department is not entitled to another opportunity to submit evidence on that issue having had a full and fair opportunity to litigate the issue in the trial court. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 833-834.)
Unlike the situation in Conti, supra, 1 Cal.3d 351, here there was no reliance on established authority by the Department in not providing evidence of prejudice. In Conti, the court held that because it was overruling prior authorities holding that prejudice was presumed from unreasonable delay, the party claiming laches should have the opportunity to present evidence of prejudice. (Id. at p. 366.)
C. Subsequent Applications for a CCW endorsement
Following the temporary revocation of his CCW endorsement in November 1999, petitioner entered into an April 2002 settlement agreement with the Department pursuant to which he agreed, inter alia, to retire voluntarily. Thereafter, in May 2002, he made his original application for a CCW endorsement, which the Department denied in June 2002. Petitioner timely appealed that denial, but the Department failed to act on the appeal. The trial court stated that petitioner’s appeal was the equivalent of a request for a good cause hearing. Petitioner then filed a second application for a CCW endorsement in November 2004 without first seeking writ relief based on the denial of the first application and the Department’s failure to provide him with a good cause hearing before a three-member board.
In ruling on petitioner’s request for writ relief, the trial court found that petitioner was “guilty of laches in failing to seek mandamus to compel the Department to grant him a three-member board hearing on the denial of his [original] application [for a CCW endorsement].” Although the trial court acknowledged that laches would not have barred petitioner from seeking writ relief on the denial of his second application in 2004, it concluded that petitioner “cannot reapply and seek a three-member hearing when a new application is denied. He had no right to make a new application, and no right to a three-member hearing board when the second application was denied. Any other result would permit a retired peace officer to reapply each time he or she is denied [a CCW] endorsement and be entitled to a three-member hearing board when the application was denied.” Petitioner asserts that he could reapply for the CCW endorsement, and therefore because laches would not apply to his reapplication, he was entitled to a hearing on that reapplication. Assuming that there is no right to repeated hearings or applications (see 78 Ops. Cal. Atty. Gen. 128 (1995) [section 12027.1 then in effect limits applicant to one hearing] the issue would be whether, when the retired officer has erroneously been denied a hearing, is he or she foreclosed from reapplying and limited to the remedy of a writ of mandate. As we have determined that the writ of mandate could not be denied because of laches, we do not have to resolve that issue of whether a second application could be made.
Section 12027.1, subdivision (b)(1) was amended in 2009 (effective January 1, 2010) by the addition of the adjective “permanently” before the word “revoked.” Subdivision (d) was not changed. These and other modifications to section 12027.1 in 2009 are not determinative as to whether under the statutes in effect at the relevant times a retired peace officer can make subsequent applications for a CCW endorsement following a denial of an initial application. The amendment, however, could have been simply to remove any doubt as to the interpretation of the prior acts. (See 2B Singer, Statutes and Statutory Construction (7th ed. 2008) § 49.11, pp. 145-152; see also Eu v. Chacon (1976) 16 Cal.3d 465, 470 [legislative expression of intent of an earlier act although perhaps relevant, are not binding on courts in construction of prior act].)
D. Statute of Limitations
The Department contends that regardless of whether it made an adequate showing of laches, the statute of limitations applies to bar petitioner’s request for writ relief. According to the Department, the four-year statute of limitations period specified in Code of Civil procedure section 343 applies to this case and bars petitioner from pursuing the writ relief he seeks. Petitioner counters that, as the trial court found, the Department waived its statute of limitations defense.
Code of Civil Procedure section 343 provides, “An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”
In its answer to the verified petition, the Department alleged as follows concerning the statute of limitations: “The petition, seeking to redress an alleged wrong allegedly committed as early as November 4, 1999 or, alternatively June 4, 2002, ... is untimely under any conceivable statute of limitations.” In its memorandum of points and authorities in opposition to the petition, the Department stated that the petition was “untimely” and that “[p]etitioner has slept on his rights, ” but did not specify the applicable statute or statutes of limitations or provide any specific argument concerning same. At the hearing on the petition, the trial court found that “[t]he next question is whether [petitioner] failed to timely file a mandamus petition after his first appeal was not acted upon in 2002. The Department does not cite any particular statute of limitations and this issue is waived.”
It has long been the law of this State that the statute of limitations must be pleaded either specifically or with reference to the particular statute relied upon. As the court explained in Brown v. World Church (1969) 272 Cal.App.2d 684, 691, “With reference to the plea of the statute of limitations, it is clear that appellants failed properly to plead the statute. There are two ways of making such a plea, first by alleging all of the facts showing that the action is barred (Adams v. Patterson, 35 Cal. 122; Osborn v. Hopkins, 160 Cal. 501 [117 P. 519, Ann.Cas. 1913A 413]) and indicating that the lateness of the commencement of the action is being urged as a defense (Hall v. Chamberlain, 31 Cal.2d 673 [192 P.2d 759]). The second method is stated in section 458 of the Code of Civil Procedure. It is necessary for defendant who pleads the statute of limitations to specify the applicable section, and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof. If he fails to do so the plea is insufficient. (See Davenport v. Stratton, 24 Cal.2d 232 [149 P.2d 4]; Overton v. White, 18 Cal.App.2d 567 [64 P.2d 758, 65 P.2d 99]; Hopkins v. Hopkins, 116 Cal.App.2d 174 [253 P.2d 723]; Horwath v. Roosevelt Hotel Co. 118 Cal.App.2d 1 [257 P.2d 56]; Frustuck v. City of Fairfax, 212 Cal.App.2d 345 [28 Cal.Rptr. 357].) Section 337 of the Code of Civil Procedure has two subdivisions and defendants failed to specify under which subdivision of the section they allegedly come.” (See also Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 573, fn. 4 [“failure to allege appropriate subdivision of the statute of limitations waives the defense”]; DeCelle v. City of Alameda (1963) 221 Cal.App.2d 528, 533 [“It is settled that the bare allegation that a cause of action is barred by the statute of limitations, without specification of a particular code section, is not sufficient to raise this defense”]; and Calvary Presbyterian Church v. Brydon (1935) 4 Cal.App.2d 676, 678 [defendant sought leave to file certain amendments to his answer setting up the defense that the action “‘is barred by the statutes of limitation, ’ without citing any section of the code upon which he relied. Such an amendment, even if permitted, would not be a sufficient plea of the statute of limitations”].)
The Department pleaded only that the petition was barred “under any conceivable statute of limitations, ” but it did not plead the specific facts that gave rise to that defense or provide the statute or statutes upon which the Department was relying. Moreover, in its memorandum of points and authorities, the Department argued generally about untimeliness, but did not differentiate between the statute of limitations and the equitable doctrine of laches. Based on the authorities, the trial court’s finding of waiver based on the Department’s failure to plead adequately the statute of limitations was correct. Thus, by failing to raise the defense adequately in the trial court, the Department has forfeited the issue on appeal. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at pp. 264-265.)
CONCLUSION
We hold that the doctrine of laches did not bar petitioner’s petition for a writ of mandamus. We remand this matter to the trial court to make the determination as to whether petitioner is entitled to a good cause hearing and if so how to address petitioner’s request as to the time “good cause” should be determined.
DISPOSITION
The judgment of the trial court denying petitioner’s petition for writ of mandate is reversed and remanded with instructions directing the trial court to hold a further hearing on the petition to determine whether petitioner has a right to a “good cause” hearing under section 12027.1. Each party to bear his or its own costs.
I concur: ARMSTRONG, J.
TURNER, P. J.
I concur in the judgment. First, I view the facts of the case differently from my colleagues. On November 4, 1999, Deputy Director Michael Gallegos suspended plaintiff’s firearm privileges as a peace officer pursuant to Parole Services Manual section 2800 and Department of the Youth Authority Manual sections 5700 through 5780. Thereafter, plaintiff was the subject of a hearing before an administrative law judge and the State Personnel Board of the State of California (the board) after which multiple misconduct findings were returned. On April 5 and 6, 2001, the board adopted the decision of the administrative law judge who found plaintiff: had an intimate relationship with a supervisor in violation of the policies of the Department of the Youth Authority (the youth authority); lied under oath as to the existence of the intimate relationship; and therefore violated Government Code sections 19572, subdivisions (d), (f), (o), (r) and (t) and 19990.1 The administrative law judge did not sustain domestic violence related allegations. Plaintiff was demoted from the position of parole officer to that of correctional counselor.
After the decision was final, the youth authority and plaintiff entered into a stipulation. The stipulation required the board set aside its April 5 and 6, 2001 decision approving the findings of the administrative law judge. The stipulation states: plaintiff is deemed retired effective May 1, 2001; plaintiff was deemed to have resigned; plaintiff was to receive one-year of back pay; plaintiff would never seek employment with the youth authority or the Department of Corrections; if plaintiff were inadvertently offered a position by those agencies, they were entitled to terminate him; and plaintiff was to withdraw three administrative discrimination complaints. On April 16, 2002, the board approved the settlement, stating: the settlement was consistent with the State Civil Service Act (Gov. Code, § 18500 et seq.); it expressed no opinion as to whether the settlement was otherwise reasonable; and the settlement was consistent with its precedential ruling that state agencies not be barred from truthfully relating the events leading up to a resignation and retirement as part of a settlement. (http://www.spb.ca.gov/WorkArea/showcontent.aspx?id=2398.)
On an unspecified date, plaintiff applied for a concealed firearm endorsement. There is no evidence he requested a hearing. On June 4, 2002, plaintiff’s request was denied because he was under investigation at the time of his May 1, 2001 retirement for conduct which could result in termination but he was given 15 days to appeal. On June 14, 2002 plaintiff’s lawyer wrote a letter complaining of the refusal to issue a concealed firearm endorsement but not requesting a hearing. No action was taken by the youth authority in response to the June 14, 2002 letter.
On November 16, 2004, plaintiff applied again for a concealed firearm endorsement. The November 16, 2004 application falsely states that this was plaintiff’s initial request for a concealed firearm endorsement. Further, the November 16, 2004 application made no request for a hearing. On June 28, 2005, the acting deputy director, Don King, denied plaintiff’s concealed firearm endorsement request. On July 7, 2005, a different lawyer representing plaintiff wrote a letter complaining about the denial of the request for issuance of a concealed firearm endorsement. Again, no request for a hearing was made. On July 21, 2005, Silvia Garcia, chief deputy secretary of the Juvenile Justice Division of the Department of Corrections and Rehabilitation (juvenile justice division), the successor agency to the youth authority, responded: “In April 2000, you were dismissed for numerous acts of misconduct. After a full evidentiary hearing, the State Personnel Board rendered a decision permanently demoting you to Senior Youth Counselor after determining that you violated Government Code Sections 19572 (d) inexcusable neglect of duty, (f) dishonesty, (o) willful disobedience, (r) violation of prohibitions set forth in accordance with section 19990, and (t) other failure of good behavior. [¶] Your misconduct resulted in an adverse action that the State Personnel Board sustained in part. In accordance with Department policy, I am denying you application.”
On August 3, 2005, plaintiff again wrote requesting issuance of a concealed firearm endorsement. Plaintiff claimed: “[T]here was an investigation of myself, which resulted in a termination.... [¶] The judge ruled in my favor, setting aside the termination, and ordering reinstatement.” As noted, plaintiff misstated the results of the board proceedings-he was demoted and found to have, among other things: lied under oath; willfully disobeyed orders; engaged in inexcusable neglect of duty; violated the youth authority’s nepotism policy; and had an intimate relationship with a workplace superior. But, as in all prior communications by himself or his lawyers, plaintiff did not request a hearing. On August 25, 2005, Bernard Warner, the chief deputy secretary of the juvenile justice division reiterated the previously expressed reasons for the denial of the concealed firearm endorsement request.
It was not until November 18, 2005, that plaintiff, through counsel, requested a hearing pursuant to Penal Code section 12027.1, subdivision (d). On August 10, 2006, plaintiff was notified by Mr. Warner, chief deputy secretary of the juvenile justice division: “Your request for a CCW endorsement was disapproved based on specified disqualifying factors. You have appealed this decision and are requesting a hearing be conducted for a showing of good cause. Good cause shall be determined at a hearing, as specified in subdivision (d) of PC section 10228. [¶] Under PC section 120208, the hearing conducted shall be held before a three-member hearing board. One member of the board shall be selected by the agency and one member shall be selected by the retired peace officer or his or her employee organization. The third member shall be selected jointly by the agency and the retired peace officer or his or her employee organization.” Mr. Warner identified two potential panelists.
On March 14, 2007, plaintiff’s counsel, Rudy E. Jansen, wrote to Mr. Warner. The contents of Mr. Jansen’s letter serve in part as the evidence relied upon by defendant. On September 12, 2006, a hearing was held before three panelists. Two panelists asserted the panel was to determine whether “good cause” existed at the time of the revocation of plaintiff’s right to carry a concealed firearm by the youth authority on November 4, 1999. These two panelists believed they were not to determine whether good cause existed on the hearing date, September 12, 2006. Mr. Jansen, argued the panel should determine whether good cause existed at the time of the hearing-not as of November 4, 1999, the date the youth authority revoked plaintiff’s right to carry a concealed firearm. According to plaintiff’s counsel, Mr. Jansen, this issue caused the hearing to be cancelled “pending verification.”
Mr. Jansen had spoken to the panel moderator, Carolina Luevanos-Garcia. Mr. Jansen wrote: “The last contact between the Parties was February 1, 2007 between myself and Ms. [Luevanos-Garcia]. In that conversation, she informed me that currently no policy existed to specifically define or address the retroactivity of ‘good cause.’ The Department is currently writing a policy on that point and is looking for guidance towards the California Highway Patrol.... [¶] Since at this time research and a policy remain pending, [plaintiff] is now, with this letter, submitting a new request to have his revoked CCW permit on November 4, 1999 be reinstated. [¶] In the [event] of a denial, [plaintiff] is further requesting that a hearing be scheduled to determine whether ‘good cause’ exists at the time of his new request.” Mr. Jansen concluded the March 14, 2008 letter addressed to Mr. Warner, “Please consider [plaintiff’s] new request for reinstatement of his CCW.” On February 22, 2008, the exact same request was made by Mr. Jansen; albeit to Ms. Luevanos-Garcia.
On May 28, 2008, on behalf of defendant, Ms. Luevanos-Garcia responded to Mr. Jansen’s February 22, 2008 letter. Ms. Luevanos-Garcia argued: the Departmental Operations Manual “and case law” prohibited an employee from reapplying for a concealed firearm endorsement; plaintiff’s right to carry a concealed firearm was revoked on November 4, 1999; in November 2004, plaintiff applied for a “CCW permit” which was denied by Don King for “good cause”; and in July 2005, plaintiff’s application was denied by the chief deputy director, Ms. Garcia, for good cause. Ms. Luevanos-Garcia wrote: “Under section 5828 of the Department of the Youth Authority Administrative Manual, good cause is defined to exist when, ‘The retiree is discovered to have been involved in act(s) of misconduct which occurred during regular services that may have reasonably resulted in adverse action.”’ Ms. Luevanos-Garcia then argued that: plaintiff was dismissed in April 2000 for misconduct and was permanently demoted by the State Personnel Board; this resulted from findings plaintiff engaged in inexcusable neglect of duty, dishonesty, willful disobedience, and violations of Government Code section 19990, and for other failure of good behavior. Ms. Luevanos-Garcia then wrote: “[D]ue to the department’s previous denial of [plaintiff’s] request for a CCW Permit and under the statutory language of PC 12027.1, the department is under no obligation to provide an appeal to a “Good Cause” Hearing. Therefore, he may no longer re-apply through the departmental process for an endorsement.” Ms. Luevanos-Garcia explained plaintiff could now challenge her position in the trial court. In response to Ms. Luevanos-Garcia’s May, 28, 2008 letter, on September 17, 2008, plaintiff filed his mandate petition.
Thus, plaintiff’s hearing request was granted by Mr. Warner on August 10, 2006. The hearing was held on September 12, 2006. The September 12, 2006 hearing was suspended over a disagreement concerning the operative date for determining good cause. On March 14, 2007, and February 22, 2008, Mr. Jansen requested a hearing. Thereafter, on May 28, 2008, Ms. Luevanos-Garcia refused to reschedule the hearing.
Second, laches has nothing to do with the proper outcome of this case. Here is the pertinent part of the trial court’s ruling: “The next question is whether Owens failed to timely file a mandamus petition after his first appeal was not acted upon in 2002. The Department does not cite to any particular statute of limitations, and this issue is waived. [¶] A related question is whether Owens is guilty of laches. The failure to challenge an agency’s decision under administrative mandamus may be dismissed for laches. Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 357. The same is true for traditional mandamus. Owens clearly is guilty of laches in failing to seek mandamus to compel the Department to grant him a three-member hearing board on the denial of his 2002 application. [¶] Of course, Owens does not seek mandamus with respect to the 2002 application, but rather for the 2004 application which was not denied without a hearing until May 2008. Certainly, Owens is not guilty of laches in his timely pursuit of that denial. [¶] But is Owens bound by his failure to pursue the denial in 2002? The answer to that question depends on whether a retired police officer can apply only once for an endorsement for a CCW. The right to carry a concealed weapon is restricted under the law to certain individuals, including peace officers and retired peace officers who meet the criteria. The purpose of section 12027.1 is to permit peace officers to obtain an endorsement for a CCW when they retire, and to permit the issuing agency to revoke or deny the endorsement on a showing of good cause. See Summerfield v. Helmick (1997) 57 Cal.App.4th 315, 320-321. The statute is not an entitlement or right which may be periodically reviewed depending on the good behavior of a retired peace officer to determine whether he or she is now fit to carry a concealed weapon. A retired officer gets to apply for an endorsement for a concealed weapon only once. When that officer is denied an endorsement for a CCW based on alleged good cause, he or she must timely seek his three-member appeal. [¶] Owens did timely seek an appeal, but failed to timely pursue traditional mandamus when that appeal right was denied. His laches with respect to the first denial is binding; he cannot reapply and seek a three-member hearing when a new application is denied. He had no right to make a new application, and no right to a three-member hearing board when the second application was denied. Any other result would permit a retired peace officer to reapply each time he or she is denied an endorsement and be entitled to a three-member hearing board when the application was denied.”
The first time plaintiff requested a hearing was in Mr. Jansen’s November 18, 2005 letter. In its ruling, the trial court ruled that laches did not apply to the subsequent concealed firearm endorsement because it was not until May 28, 2008, Ms. Luevanos-Garcia refused to reschedule the hearing that had been interrupted on September 12, 2006. Substantial evidence supports the trial court’s laches finding as to the November 18, 2005 hearing request. (The trial court inadvertently referred to the hearing request as occurring in 2004.) Thus, I would therefore not address the issue of laches as it relates to the November 18, 2005 hearing request as it is irrelevant-the trial court found plaintiff acted with sufficient promptness by filing the mandate petition on September 17, 2008 in response to Ms. Luevanos-Garcia’s May, 28, 2008 letter.
Third, I respectfully disagree with the trial court’s ruling that the original denials have any preclusive effect. The trial court ruled that laches barred pursuit of the initial denial of plaintiff’s concealed firearm endorsement request. And, in the trial court’s view, plaintiff could not reapply after the initial denial of his concealed firearm endorsement request. An administrative ruling can be entitled to res judicata or collateral estoppel effect. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 113-114; see 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 360, p. 979.) But an administrative ruling has no res judicata or other preclusive effect unless it results from a proceeding with judicial characteristics including but not limited to: under oath testimony; the option of calling witnesses and introducing evidence; the opportunity to present arguments; a formal record of the proceedings; and a written statement of reasons for the decision. (McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at pp. 113-114; Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.) Thus, the summary denials of the early concealed firearm endorsement requests have no preclusive effect. Further, no statute prohibits reapplication for a concealed firearm endorsement which has been denied except when by a three person panel as specified in current Penal Code section 12027.1, subdivisions (b)(1) and (d).
Fourth, defendant’s position on plaintiff’s right to a hearing has no merit. Plaintiff retired effective May 1, 2001, as a correctional counselor. On that date, Penal Code section 12027.1, subdivision (a)(1)(A)(i) stated in part, “Any peace officer employed by an agency and listed in... subdivision (c) of Section 830.5 who retired after January 1, 1981, shall have an endorsement on the identification certificate stating that the issuing agency approves the officer's carrying of a concealed and loaded firearm.” (Stats. 1993, ch. 428, § 3.) As a correctional counselor, plaintiff worked for the youth authority and had custody of wards-hence, his position was listed in former Penal Code section 830.5, subdivision (c).2 Thus, upon retirement, plaintiff was entitled to a concealed firearm endorsement.
Youth authority management was not entitled to deny a concealed firearm endorsement to a retired peace officer in 2002. A denial can only occur upon a showing of good cause which was made at a hearing before the three-person panel. At the time of plaintiff’s retirement, Penal Code section 12027.1, subdivision (a)(2) stated, “An identification certificate authorizing the officer to carry a concealed and loaded firearm or an endorsement may be revoked or denied by the issuing agency only upon a showing of good cause. Good cause shall be determined at a hearing, as specified in subdivision (d).” (Stats. 1993, ch. 428, § 3.) Penal Code section 12027.1, subdivision (d) described the three-member hearing board thusly: “Any hearing conducted under this section shall be held before a three-member hearing board. One member of the board shall be selected by the agency and one member shall be selected by the retired peace officer or his or her employee organization. The third member shall be selected jointly by the agency and the retired peace officer or his or her employee organization.” (Stats. 1993, ch. 428, § 3.) Nothing in the current version of Penal Code section 12027.1 alters the matter-a retiree is entitled to a concealed firearm endorsement unless the three-member board finds good cause to deny the retired employee’s request. Defendant does not make that decision-it is made by the three-member hearing board.
Fifth, obviously, there are things about this case which are disturbing. Plaintiff, a former peace officer, was repeatedly not provided a Penal Code section 12027.1, subdivision (d) hearing by state bureaucrats who should have scheduled one the instant plaintiff or his lawyers objected to the denial of his repeated concealed firearm endorsement requests. Penal Code section 12027.1, subdivision (b)(1) only permits the permanent denial of a concealed firearm endorsement request after a hearing. State employees are expected to fully know and comport themselves with the provisions of statutory law and that did not occur here. Further, it is disturbing that the board set aside its April 5 and 6, 2001 decision on April 16, 2002, in a case involving a peace officer found to have engaged in dishonesty and other misconduct with an expression it had no view as to whether its decision was reasonable apart from the fact it complied with the purpose of the Civil Service Act. Also, after having been found to have lied under oath, plaintiff was demoted to the position of correctional counselor where, but for his retirement, he would have counseled troubled youths. And plaintiff, a former peace office who wants to carry a gun wherever he goes, has repeatedly engaged in subtle deception and outright fraud in his efforts to secure a concealed firearm endorsement. But these crucial concerns are collateral to the controlling question here-the denial of his firearm endorsement request without the statutorily mandated hearing before the three-member board.