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David Scott Curtis v. Bureau of Firearms et al


January 10, 2012


(Super. Ct. No. 06CS01447)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Curtis v. Bureau of Firearms



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff David Scott Curtis petitioned for a writ of mandate to compel the Department of Justice (the Department) to provide copies of any records it had concerning him and two firearms he had once possessed. The trial court dismissed the petition as moot, as the Department had already provided him with a firearm history that listed the firearms the Department's records noted he had purchased.

Plaintiff appeals, claiming he was entitled to much more information from the Department under various provisions of the Penal Code. We affirm the judgment. The petition was moot to the extent it sought a firearms history which the Department had already provided, and it was otherwise premature by seeking information which plaintiff had first not requested directly from the Department.


Plaintiff is an inmate incarcerated at California State Prison, Solano. He was convicted of second degree murder in 1993 and is serving a sentence of 19 years to life.

By letter dated December 26, 2005, plaintiff informed the Department he was attempting to locate information on a firearm he had once owned. The gun, a .25-caliber semiautomatic handgun, was in his pickup when, in 1991, the pickup was stolen. Plaintiff reported the incident and the lost firearm to the Riverside Police Department. Police later recovered the pickup but not the gun. In his 2005 letter to the Department, plaintiff asked how he could obtain "any information related to this handgun," such as its serial number, whether it had ever been found, where it was found, and if it had been destroyed after it was found.

In response, the Department of Justice provided plaintiff with instructions on how he could ask the Department's Firearms Division to search its records for a firearms history. The Department did not explain the scope of a firearms history search. Plaintiff complied with these instructions, and by letter dated February 6, 2006, formally requested a "personal firearm history search."

By September 2006, plaintiff had not received any response from the Department's Firearms Division to his request. He filed a petition for writ of mandate against the Firearms Division and its director to compel the Firearms Division to respond.*fn1 He alleged the possible existence of the stolen .25-caliber handgun. He also alleged the existence of another gun, a .30-30 rifle that was confiscated from him by the Riverside Police Department in 1991 when he was arrested for the murder for which he is now incarcerated. He alleged the rifle had been stored in an evidence locker with the Riverside County District Attorney. He claimed he had not received a receipt documenting the rifle's storage from the district attorney.

In his petition, plaintiff asserted the Firearms Division had violated his rights under the state Information Practices Act of 1977 (Civ. Code, § 1798 et seq.) (the IPA) to receive copies of his firearms history, documents that qualified as personal records under the IPA. He also claimed he was entitled to examine these records pursuant to Penal Code sections 13321 and 13323, statutes that provide access to local summary criminal histories maintained by a local criminal justice agency. (See Pen. Code, § 13320 et seq.) He asked the court to compel the Firearms Division to provide him "access to personal records; his firearm history."

Plaintiff also prayed for an award of $100 in damages for the Firearms Division's failure to comply with the IPA. He did not allege filing a claim for damages with the state pursuant to the Government Claims Act (Gov. Code, § 810 et seq.) prior to filing his petition for writ of mandate.

By letter dated October 4, 2006, the Firearms Division responded to plaintiff's February 2006 request for a firearms search as well as the petition's allegations of the .30-30 rifle. The Firearms Division's search had revealed one firearm purchased by plaintiff in California, a .25-caliber semiautomatic pistol purchased in 1990.

The Firearms Division also informed plaintiff that pursuant to state law, the Department does not retain any information from sales of rifles or shotguns. Records of those sales are destroyed within five days after purchase unless the purchaser voluntarily reports his ownership of the new rifle or shotgun to the Department. The letter was signed by firearms analyst Rita Aguallo.

The Department also sent a letter to plaintiff dated the following day, October 5, 2006. In this correspondence, Vicki Lyman, manager of the Department's firearms licensing and permits section, explained the Firearms Division had investigated why plaintiff did not receive a timely response to his February 2006 request. It determined his request, along with other requests, were not processed in a timely manner due to a personnel shortage, causing a backlog that continued to exist. Lyman thanked plaintiff for informing the Firearms Division he had not received a response to his request.

Lyman also informed plaintiff that "any information relative to the possible recovery of your stolen firearm should be addressed to the law enforcement agency with which you filed the stolen report."

Approximately one month later, plaintiff received a third letter, this one from counsel for the Firearms Division. In this letter, dated November 9, 2006, Deputy Attorney General Alison Merrilees acknowledged receipt of plaintiff's petition and informed him she believed the issues it raised were moot. The Firearms Division had provided him in Aguallo's letter of October 5, 2006, "all of the information about your firearms history that we are allowed to provide to you." Merrilees apologized for the Firearms Division's delay in responding to plaintiff's request.

In August 2007, the Firearms Division, now designated as the Bureau of Firearms (the Bureau), voluntarily appeared and answered plaintiff's petition. As an affirmative defense, the Bureau alleged it had responded to plaintiff's request for a firearms history by means of Aguallo's October 2006 letter, and thus the petition was moot. It also claimed plaintiff had failed to state a claim on which mandate and damages could be granted, as there was no failure to perform a ministerial duty and it was immune from liability under the provisions of the Government Claims Act.

Plaintiff moved to strike the Bureau's answer, but on January 17, 2008, the trial court denied the motion.

On December 19, 2008, plaintiff filed a first amended petition for writ of mandate, prohibition, and declaratory relief. In addition to naming the Bureau and its director, Cid Wilfredo, as respondents, he also named Aguallo and Lyman as respondents. In this petition, plaintiff alleged the Bureau had provided him with incomplete and inaccurate information in response to his original request and petition. He sought a writ compelling the Bureau to disclose, in effect, any record it maintained that could be identified as concerning him or his firearms.

In his amended petition, plaintiff again sought the information pursuant to the IPA and Penal Code sections 13321 and 13323, but he also sought it pursuant to Penal Code sections 11106, 11108, 11108.5, and former sections 12011 and 12030. Penal Code section 11106 concerns the Department's duty to maintain records of certain firearm sales, and is the statute on which the firearms history is based. Penal Code section 11108 requires local law enforcement agencies to submit descriptions of firearms that have been reported stolen, recovered, or held for safekeeping or observation directly into the Department's automated property system for firearms. Penal Code section 11108.5 requires a law enforcement agency that identifies a firearm that has been reported lost or stolen and has been entered into the Department's automated property system for firearms to notify the firearm's owner of the firearm's location. Penal Code former section 12011, now codified at section 30005, concerns the Department's obligation to maintain an online database known as the Prohibited Armed Persons File, a database that lists owners of firearms who, subsequent to acquiring the firearm, fell within a class of persons prohibited by law from owning or possessing a firearm. Penal Code former section 12030, now codified in relevant part as section 34010, in general authorizes a law enforcement agency retaining or transferring custody of firearms that are required by statute to be destroyed to notify the Department of its action, including entering those weapons into the Department's automated property system for firearms.

Plaintiff particularly sought records concerning the stolen .25-caliber handgun (records noting "that Petitioner does not physically (directly) or circuitously possess the handgun, that it was reported stolen, whether it was found or not found, who else besides petitioner has requested to inspect these records, if this weapon has been associated to any other criminal activity, etc. . .") (underscoring in original), and the .30-30 rifle (that "the Bureau of Firearms does in fact have a record that reflects his [.]30-30 long rifle being retained by the Riverside Sheriff[']s Department").

Plaintiff also continued to seek $100 in damages. He again did not allege compliance with the Government Claims Act.

The Bureau filed a demurrer, and it requested the demurrer be sustained without leave to amend and the first amended petition be dismissed with prejudice. The Bureau claimed the petition was moot because it has already provided plaintiff with a copy of his firearms history, and it had informed him the Bureau did not retain information from the sale of rifles. It also claimed the IPA did not provide for suits against the individually named defendants. The Bureau further argued plaintiff was not entitled to an award of damages because the IPA did not provide such a cause of action and he had failed to file a claim for money or damages with the state prior to filing this action as required by the Government Claims Act.

The trial court sustained the Bureau's demurrer without leave to amend and dismissed the petition. The court stated: "[T]he Information Practices Act upon which petitioner had based his claims has no application to petitioner's request for his personal firearms history from the Firearms Division of the California Department of Justice; rather petitioner's request is governed by the provisions of Penal Code section 11106 et seq. . . . [The Bureau has] fully complied with petitioner's request for his personal firearms history from the Firearms Division under Penal Code section 11106 et seq. by providing him with the information pertinent to his request in the Division's Automated Firearms System; hence petitioner's claims against respondents and real party in interest are moot; and petitioner can contact local law enforcement agencies under Penal Code section 13321 for any records of his personal firearms history not maintained by were not [sic] respondents."

Plaintiff appeals from the trial court's judgment of dismissal. In his opening brief, he explains his concern regarding the records he seeks. By law, plaintiff, a convicted felon, is prohibited from ever owning or possessing a firearm. (Pen. Code, § 29900.) In his opinion, the various statutes on which he relies show that the Bureau should possess records that would indicate he owns the stolen .25-caliber handgun and the confiscated .30-30 rifle. His concern is that these records, if not corrected, could be used against him when he is released on parole as evidence that he unlawfully owns or possesses a firearm when in reality he does not.

He claims that when he filed his request for a "personal firearm history search," he intended the request to refer to any documents the Bureau may, or should, possess that pertain to him, not just to those documents the Bureau may have maintained in its automated firearms system dealing with ownership of firearms or the purchase and sale of handguns. He argues the IPA entitles him to inspect all personal information about him in any record the Bureau maintains, including any confidential records concerning him, which, he believes, Deputy Attorney General Merrilees implied the Bureau possessed.

Plaintiff also claims he was not required to file a claim with the state before filing his action for damages because, under the Government Claims Act, no claim is required where the damages sought from the government agency are ancillary to the equitable relief being sought. He asserts his damages arise from the mental suffering caused by the possibility of someday being charged with unlawfully owning a firearm due to the information contained in the Bureau's records, and that this damage is ancillary to the non-monetary relief he primarily seeks.


Plaintiff initiated this matter with a request for any information the Department possessed regarding his .25-caliber handgun. He knew he had been the owner of the gun. In addition to learning whether he was still listed as the gun's owner, he wanted to learn, if possible, what had happened to the gun after it was stolen.

In response, the Department sent him a form to obtain a firearms history. The Department did not explain what a firearms history would provide. Apparently, the history provides only a list of firearms for which the requestor is named in the Department's records as the purchaser, transferee, or owner. (See "Automated Firearms System Record Request" at [as of Jan. 6, 2012].)

The firearms history does not list all firearms a person may have purchased. Of relevance here, the Department is prohibited from retaining or compiling any information for firearms that are not handguns, or from dealers' records of sales of firearms that are not handguns, unless otherwise required by statute. (Pen. Code, § 11106, subd. (b)(1).) As a result of this provision, the Department claims, it has no firearms history record of a .30-30 rifle ever being owned by plaintiff.

When, after filing his petition for writ of mandate, plaintiff received the firearms history informing him only that he had purchased the .25-caliber handgun, he was frustrated because he believed he had requested significantly more information and that his firearms history should have included more information. He then sought in the first amended petition copies of all personal information the Department possessed regarding him and his weapons, not just a listing of what weapons he had owned.

We acknowledge the Department pigeon-holed plaintiff's original request for any information regarding his .25-caliber handgun into a request for a firearms history. However, plaintiff filed a formal request for a firearms history, and his original petition for writ of mandate sought only to obtain that firearms history for both the .25-caliber handgun and the .30-30 rifle. Although plaintiff claims the Department misunderstood the scope of his request, his petition sought only to obtain a certain class of "personal records; his firearms history."

Thus, in her November 2006 letter written after the Department had provided plaintiff with his firearms history, Deputy Attorney General Merrilees correctly stated the original petition appeared to be moot, as the Department had provided plaintiff with all of the information Penal Code section 11106 allowed it to provide in a firearms history.

Instead of applying directly to the Department for additional personal information to which he believed he was entitled that was outside the limited scope of a firearms history, plaintiff amended his petition to seek for the first time all personal information the Department maintained concerning him and his firearms. Besides seeking this expanded request under the IPA, plaintiff also raised for the first time additional statutory bases for obtaining this information, including a separate request for his Prohibited Armed Persons File.

Unfortunately for plaintiff, a petition for writ of mandate is not a vehicle to compel an agency to perform an alleged duty the petitioner did not first ask the agency directly to perform.

A writ of mandate lies to "compel performance of a clear, present and usually ministerial duty in cases where a petitioner has a clear, present and beneficial right to performance of that duty." (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972.) Mandate will issue only when a petitioner has no plain, speedy or adequate remedy at law and he has exhausted any available administrative remedies. (Code Civ. Proc., § 1086; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 620.)

Plaintiff's formal request to the agency, and his original petition for writ of mandate, were limited to seeking a firearms history. Plaintiff has received that information as provided by statute, and thus his request for it in his amended petition is moot. Plaintiff argues the other information he desires should have been included as part of the firearms history, but Penal Code section 11106 states otherwise.

If plaintiff seeks personal records and information held by the Department in addition to a firearms history, he must first request that information directly from the Department pursuant to procedures for obtaining it under the IPA; Penal Code sections 11105, 11120 et seq., and 30000 for examining his Prohibited Armed Persons File, including any summary criminal history information maintained by the Department; and any other statute which may grant plaintiff a right of inspection. Because plaintiff did not, and cannot, allege exhausting these administrative remedies before filing his petition, the trial court correctly sustained the demurrer and dismissed the petition with prejudice.

Before plaintiff begins this process, we note for his edification that the IPA may not grant him all of the information he may seek. Unless a different statute provides otherwise, the IPA exempts from disclosure any "personal information" the Department compiles "for the purpose of a criminal investigation of suspected criminal activities . . . and associated with an identifiable individual[,] [or] [i]s contained in any record which could identify an individual and which is compiled at any stage of the process of enforcement of the criminal laws, from the arrest or indictment stage through release from supervision . . . ." (Civ. Code, § 1798.40, subds. (b), (c).)

We also note the additional statutes plaintiff cited in his first amended petition, Penal Code sections 13321, 13323, 11108, 11108.5, and former section 12030, generally concern information originally obtained by local law enforcement agencies that is subsequently reported to the Department. They do not, by themselves, obligate the Department to disclose any records. We join in the trial court's recommendation that plaintiff contact local law enforcement agencies in Riverside County to request any information they may have regarding plaintiff and his firearms.

Finally, we agree with the Attorney General that plaintiff's prayer for damages is barred by his failure to file a timely claim before bringing this action. (Gov. Code, §§ 905.2, 945.4, 950.2; Bates v. Franchise Tax Bd. (2004) 124 Cal.App.4th 367, 382.) His claim for damages is not ancillary to his petition for mandate, an exception to the claim filing requirement. Money or damages are ancillary to mandate if the ministerial duty being enforced imposed on the agency an obligation to pay money to the petitioner. (See Branciforte Heights, LLC v City of Santa Cruz (2006) 138 Cal.App.4th 914, 929 [mandate petition seeking return of specific sum of money belonging to party under applicable law is not claim for money or damages and is exempt from Government Claims Act filing requirements].) Here, plaintiff admits his request for money does not seek payment of money owed him pursuant to the ministerial duty being enforced, but rather seeks a payment of damages to compensate him for harm allegedly caused him by the Department. Such damages are not ancillary to granting the writ of mandate.


The judgment of dismissal with prejudice is affirmed. Costs on appeal are awarded to the Department. (Cal. Rules of Court, rule 8.278(a).)

We concur: HULL , J. BUTZ , J.

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