Judge Curtis A. Kin, Case Number: 23STCP04618, Date: 2024-08-15 Tentative Ruling

Petitioner Jason Paul Catino petitions for a writ of mandate directing respondent Department of Motor Vehicles (“DMV”) to set aside an order suspending petitioner’s driving privileges.

The California Financial Responsibility Law (Veh. Code § 16000, et seq.)[1] requires drivers of motor vehicles to be self-insured, to have insurance, or to be otherwise financially responsible for damages caused by accidents. A driver involved in an accident having caused damages over $1,000, death, or bodily injury must report such accident to the DMV on an approved report form. (§ 16000.) The law requires the driver to show proof of financial responsibility at the time of the accident to the satisfaction of the department. (§ 16050.)

Section 16070 requires the DMV to suspend the driving privilege of a driver involved in an accident described in section 16000 who fails to provide evidence of financial responsibility, as required by section 16020, at the time of the accident. (§ 16070(a).)

On August 8, 2023, petitioner was driving on Highway 101 when he rear-ended Shahrzad Arbab. (AR 3.) The collision caused damage to Arbab’s car. (AR 3.) At the time of the accident, it was estimated that the damage was over $1,000 and Arbab claimed she was injured. (AR 8.)

Respondent convened an administrative hearing on November 15, 2023 to determine whether petitioner was involved in an accident in violation of the financial responsibility requirement of section 16020. (AR 19.) Only one hearing officer, Linda Talton-Shakur, participated in the hearing. (AR 19, 27.)

The Hearing Officer marked two exhibits (AR 20-21), which were petitioner’s driving record as of October 18, 2023 (AR 7) and a Report of Traffic Accident Occurring in California, otherwise known as an SR-1 form (AR 8). Both documents purport to show that petitioner was involved in an accident on August 8, 2023; the SR-1 additionally alleges injury and damages in excess of $1,000.

The Hearing Officer also called Arbab to testify during the hearing. (AR 21.) Arbab testified that petitioner was driving a rental vehicle and did not provide her with his insurance information. (AR 21.) Arbab testified that damages were “estimated [to be] four thousand to six thousand dollars” (AR 25) and that, after the accident, she had “a little bit of a pain . . . but it’s okay. It’s not that bad. It went away.” (AR 25-26.)

The Hearing Officer then asked Arbab to obtain documents during the following colloquy:

DRIVER SAFETY HEARING OFFICER TALTON-SHAKUR: Okay. And so, you—did your attorney ever give you copies of the damages that was (sic) estimated? You don’t have any physical documents to show?

DRIVER SAFETY HEARING OFFICER TALTON-SHAKUR: Is it possible that you can contact your lawyer for a copy of the damages to your vehicle, the estimate?

DRIVER SAFETY HEARING OFFICER TALTON-SHAKUR: I can’t call him to get them. You would have to call him to get the estimate of the damages so you could submit it to—so you can give it to me.

DRIVER SAFETY HEARING OFFICER TALTON-SHAKUR: No. No, that was—only thing I need is just the estimates of the damages to your vehicle.

The Hearing Officer excused the witness and entertained petitioner’s objections to the marked exhibits. (AR 32-34.) She overruled all the objections and admitted the documents into evidence. (AR 35.) She then chose a new hearing date “to reconvene the case so I can obtain additional discovery from Ms. Arbab for her to send the estimate of the repairs today.” (AR 35.)

The Hearing Officer reconvened the hearing on November 21, 2023 and marked as Exhibit 3 a November 17, 2023 email message from Ms. Arbab to the Hearing Officer containing a “Preliminary Estimate” of repairs to a 2017 Audi Q3 in the amount of $5,014.75. (AR 9-11, 38-39.) Petitioner objected on numerous grounds. (AR 39-40.) The Hearing Officer overruled the objections and admitted Exhibit 3 into evidence. (AR 40.) Petitioner provided no proof of financial responsibility or evidence. (AR 41-42.)

On November 29, 2023, respondent, by way of the Hearing Officer, issued a Notice of Findings and Decision regarding Financial Responsibility. (AR 5.) Based on a review of the evidence, respondent determined by a preponderance of the evidence, that cause exists to suspend petitioner’s driving privilege pursuant to sections 16070 and 16072. The Hearing Officer found that petitioner was the driver or owner of a motor vehicle involved in an accident as described in section 16000 which did not result in bodily injury or death but did cause damage to the property of another person over $1,000. (AR 4.) The Hearing Officer also found that petitioner was not covered by an acceptable form of financial responsibility as described in section 16021 at the time of the traffic accident for the vehicle involved in the accident. (AR 4.)

On December 27, 2023, petitioner filed a verified Petition for Writ of Mandate. On March 29, 2024, respondent filed an Answer.

On January 8, 2024, the Court granted petitioner’s ex parte application to stay the suspension of petitioner’s driver license pending entry of judgment in the instant matter.

On June 14, 2024, petitioner filed an opening brief. On July 15, 2024, respondent filed an opposition. On July 29, 2024, petitioner filed a reply. The Court has received the administrative record lodged by petitioner.

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.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency’s action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “[a]n administrative agency’s interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).) “[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.)

When a driver petitions for a writ of mandate following an order suspending his or her driver’s license, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.) However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda, 20 Cal.4th at 817, internal quotations omitted.)

Petitioner seeks to set aside the administrative decision of the DMV to suspend his driving privileges. Petitioner argues that the Hearing Officer improperly acted as both advocate and adjudicator in handling the case, in contravention of the Court of Appeal’s holding in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (CDLA II).[2] In CDLA II, the Court of Appeal held that “combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California constitution Article I, section 7.” (CDLA II, 77 Cal.App.5th at 532.)

The Court of Appeal in CDLA II found that a hearing officer cannot serve as both advocate for the DMV and decision maker in the same proceeding because it creates an unacceptable risk of bias. “Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process.” (CDLA II, 77 Cal.App.5th at 532, emphasis added.) Thus, in CDLA II, the Court of Appeal ordered that the DMV be permanently enjoined from having its hearing officers function as advocates and finders of fact in the same adversarial proceeding.[3] (Id. at 538.)

Respondent maintains that the Hearing Officer may collect and develop evidence, as well as render a final decision. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 220 (Today’s Fresh Start) [“[A] legislature may adopt an administrative procedure in which the same individual or entity is charged both with developing the facts and rendering a final decision”]; Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th at 207 [“[A]s recognized by [CDLA II] itself, the same agency employee may collect and develop evidence and act as the adjudicator in a single case without offending due process”].) While this may be true, the Court of Appeal has determined that a DMV hearing officer must refrain from advocating on behalf of the DMV, including by presenting the DMV’s case. (CDLA II, 77 Cal.App.5th at 533, fn. 5.)

During the financial responsibility hearing, the Hearing Officer introduced into evidence the SR-1 form indicating that Ms. Arbab’s vehicle was damaged in an amount over $1,000 (Exhibit 2) and the “Preliminary Estimate” indicating that the cost of repairs would be $5,014.75 (Exhibit 3). (AR 8-9, 20-21, 38-39.) Petitioner raised numerous objections to those documents, and the Hearing Officer admitted them into evidence of those objections. (AR 32-35; 39-40.) By introducing the evidence in the case against petitioner on behalf of the DMV and additionally ruling on any objections thereto, the Hearing Officer impermissibly acted as both advocate for the DMV and adjudicator as to what evidence may properly be considered. In CDLA II, the Court of Appeal found an “irreconcilable conflict between advocating for the agency on the one hand, and being an impartial decision maker on the other” where the DMV had conceded its policy and practice that, “as ‘trier of fact’ at the APS hearings, the hearing officer rules on the admissibility of the documentation he or she offers as evidence as ‘advocate for the [DMV]’ in support of the DMV's position at the APS hearing.” (CDLA II, 77 Cal.App.5th at 527, 532 emphasis added.)

Further, here, the Hearing Officer asked witness Arbab if she had any physical documents evidencing the estimated damages to her vehicle, and, when Arbab responded no, the Hearing Officer asked her to obtain documents from her attorney that were not in the DMV’s possession. (AR 26, 31.) Indeed, after petitioner’s counsel objected that Arbab’s testimony concerning damages were only estimates and not “any actual exchange of funds” evidencing actual damages, the Hearing Officer overruled counsel’s objection and continued the hearing to allow for the Hearing Officer’s receipt of documents from Arbab. (AR 34-35.) By asking for additional documents and continuing the hearing, the Hearing Officer developed the evidentiary record beyond what was in the possession of the DMV. The Hearing Officer appears to have done so in order to establish the jurisdictional requirement of more than $1,000 in damage to Arbab’s vehicle. (See Veh. Code § 16000(a).) In so doing, the Hearing Officer acted as an advocate for the DMV. The Hearing Officer therefore could not also act as adjudicator by ruling on the evidentiary objections and deciding to suspend petitioner’s driver license. (AR 3-5, 34-35, 40.)

Respondent argues that, even if the Hearing Officer committed error, petitioner is required to show prejudice resulting from a procedural due process violation. “[P]rocedural due process violations, even if proved, are subject to a harmless error analysis,” i.e., a different outcome would have resulted in the absence of the violation. (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)

While it may be true that ordinarily a petitioner must demonstrate prejudice or harm to prevail on a due process claim, the Court of Appeal in CDLA II determined that tasking the hearing officer with advocacy and fact-finding duties creates an unacceptable risk of bias and renders any presumption of impartiality irrelevant. (CDLA II, 77 Cal.App.5th at 532.) Simply put, the Hearing Officer’s dual role at the hearing “violate[d] the minimum constitutional standards of due process.” (Ibid.; see also Knudsen, 101 Cal.App.4th at 83 [“California and federal cases either expressly recognize or appear to assume that the violation of the due process right to an impartial adjudicator, be it through a showing of actual bias or through a showing that a constitutionally intolerable probability/risk of bias exists, is deemed a structural error that requires reversal without regard to the sufficiency of the evidence or the possibility of a harmless error analysis”].)

As of July 20, 2022 at the latest, when the California Supreme Court deemed CDLA II final, the DMV knew it was permanently enjoined from having its hearing officers act as advocates and adjudicators. (CDLA II, 77 Cal.App.5th at 538.) Despite the injunction, the DMV conducted the hearing in the instant matter with the Hearing Officer acting as advocate for the DMV and finder of fact in the hearing. Accordingly, petitioner is entitled to a new hearing. (See Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 98.)

The petition for writ of mandate is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.

Petitioner requests attorney fees pursuant to Government Code § 800. Under the statute, complainants who demonstrate that findings in an administrative proceeding were the result of arbitrary or capricious action by a public entity may

collect reasonable attorney’s fees not exceeding $7,500. Petitioner may seek fees in a post-judgment motion.

[1] All statutory references are to the Vehicle Code, unless otherwise indicated.

[2] CDLA II follows the Court of Appeal’s prior appellate opinion in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 524.

[3] The Court notes that CDLA II involved an administrative per se hearing. (CDLA II, 77 Cal.App.5th at 530.) However, respondent presents no argument that CDLA II is inapplicable to financial responsibility hearings.