Judge James C. Chalfant, Case 22STCP02151 2023-01-19 Tentative Ruling

Gerson Simon v. Steve Gordon,

Director, Department of Motor

Vehicles, 22STCP02151

Tentative decision on writ of mandate: denied

Petitioner Gerson Simon (“Simon”) seeks a writ of mandate to set aside the decision of Respondent Steve Gordon (“Gordon”), Director of the Department of Motor Vehicles (collectively, “DMV”), to suspend his Class C license.

The court has read and considered the moving papers attached to the First Amended Petition (“FAP”) and opposition (no reply was filed), and renders the following tentative decision.

Petitioner Simon commenced this proceeding on June 5, 2022, via Petition against Respondent DMV. The operative pleading is the First Amended Petition (“FAP”) filed September 10, 2022, alleging a cause of action for administrative mandamus. The FAP alleges in pertinent part as follows.

Simon had a Class C driver’s license until it expired on December 11, 2019. Shortly beforehand, the DMV denied his routine request for a temporary license without an opportunity to be heard. After multiple requests for a hearing failed, Simon took the DMV driving test. He passed the written multi-question Vehicle Code test, the medical examination, and the vision examination.

On September 10, 2021, Simon took a road test with Examiner Patricia Silva (“Silva”). Silva filed an unfavorable evaluation report of Simon’s driving that is not supported by his lengthy driving record.

On January 18, 2022, a hearing officer held a hearing on the refusal to issue Simon a Class C driver’s license. The hearing officer claimed that Simon asked for a month’s continuance to subpoena Silva, but the continuance took place on the hearing officer’s own motion. On March 8, 2022, the hearing officer filed a report rejecting Simon’s request for a Class C driver’s license.

Simon seeks a writ of mandate directing the DMV to set aside its decision and issue him a Class C driver’s license.

On December 8, 2022, Simon moved for leave to amend the FAP and file a Second Amended Petition (“SAP”). The hearing on the instant motion is set for the same day as the trial and the court has issued a separate tentative decision.

The DMV asserts that this action lies in traditional, not administrative, mandamus. Opp. at 12. Although the DMV granted Simon a hearing, it is not required to hold a hearing before denying an application for a driver’s license for failure to adequately perform a driving test under Vehicle Code^{^[1]} section 13953. This provision requires suspension or revocation of a driver’s license without hearing if the DMV determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons upon the highways require such action. §13953. A person is not entitled to a hearing if the DMV’s action is mandatory under the Vehicle Code. §14101(a). Opp. at 12.

The DMV is incorrect. Section 13953 states that it is an alternative to the procedure under sections 13950, 13951, and 13952. Whenever the DMV takes action under section 13953, the person receiving the notice may demand a hearing within ten days, except as provided in section14101. §14100(a).

Nothing in section 13953 comes within the section 14101 exception for mandatory action. If the DMV determines upon investigation or re-examination that that the safety of the person investigated or re-examined or of other persons upon the highways requires such action, the suspension occurs without a hearing. §13953. The hearing under section 14100(a) then follows post-suspension. Hence, section 13953 simply permits a suspension before the hearing; it does not omit a post-deprivation hearing. Simon received a post-deprivation hearing as required by law and this matter lies in administrative mandamus.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 51415.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Revocation or suspension of a license warrants application of the independent judgment test. Berlinghieri v. Department of Motor Vehicles,¿(1983) 33 Cal.3d 392, 396.

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.” Id. 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 101316.

“In 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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 51415. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The DMV shall prescribe and provide suitable forms of applications, certificates of ownership, registration cards, drivers’ licenses, and all other forms requisite or deemed necessary for the purposes of the Vehicle Code and shall prepay all transportation charges thereon. §1652(a). The DMV may require that any application or document filed with the department be signed and submitted under penalty of perjury. §1652(b).

The DMV may, through studies, develop and identify examinations and tests to more accurately identify persons who, due to physical or mental factors, or both, are not competent or qualified to safely operate a motor vehicle. §12804.8(a). Any such examination for the issuance or renewal of a driver’s license shall include (A) a test of the applicant’s knowledge and understanding of the provisions of this code governing the operation of vehicles upon the highways; (B) a test of the applicant’s ability to read and understand simple English used in highway traffic and directional signs; (C) a test of the applicant’s understanding of traffic signs and signals, including the bikeway signs, markers, and traffic control devices established by the Department of Transportation; (D) an actual demonstration of the applicant’s ability to exercise ordinary and reasonable control in operating a motor vehicle by driving it under the supervision of an examining officer; and (E) a test of the hearing and eyesight of the applicant, and of other matters that may be necessary to determine the mental and physical fitness of the applicant to operate a motor vehicle. §12804.9(a).

The DMV may conduct an investigation to determine whether the privilege of any person to operate a motor vehicle should be suspended or revoked or whether terms or conditions of probation should be imposed upon receiving information or upon a showing by its records of any grounds for which a license might be refused. §13800(f).

In addition to an investigation, the DMV may require the re-examination of the licensee, and shall give ten days’ written notice of the time and place thereof. §13801. If the licensee refuses or fails to submit to the re-examination, the DMV may peremptorily suspend the driving privilege of the person until such time as the licensee shall have submitted to re-examination. §13801. The suspension is effective upon notice. §13801.

Whenever the DMV determines upon investigation or re-examination that any ground for re-examination is true, or that the safety of the driver or other persons on the highways requires it, the DMV may suspend or revoke the person’s driver’s license or impose terms of probation on the driving privilege, after giving notice and an opportunity to be heard. §§13950-52.

In the alternative, the DMV shall suspend or revoke a driver’s license without hearing it determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons upon the highways requires such action. §13953.

When the DMV has given notice or has taken or proposes to take action for revocation or suspension of a license under, inter alia, sections 13950-52 or 13953, the person receiving the notice or subject to the action may, within ten days, demand a hearing which shall be granted. §14100(a). Any notice of the proposed action must include prominent notice of this right. §14100(c). An application for a hearing does not stay the action by the DMV for which the notice is given. §14100(b).

A person is not entitled to such hearing if (a) the DMV action is mandatory under the Vehicle Code or (b) the person previously had an opportunity with appropriate notice for a hearing and failed to request a hearing within the time specified by law. §14101.

Simon’s driving record identifies him as a senior citizen who was first issued a California driver’s license on August 3, 1999. AR 21. He has no arrests or accidents on his record. AR 21-22.

On September 24, 2019, Allison Mays, M.D. (“Mays”) sent the DMV a Request for Driver Reexamination for Simon. AR 14-15. Mays explained that Simon had medical and vision conditions. AR 14. Simon did not submit the required Report of Vision Examination and the DMV notified Simon that it would suspend his license, effective November 2, 2019, pursuant to section 13801. See AR 11. Because of the license suspension, Simon’s request for a temporary license was denied. See AR 11.

On June 1, 2021, Simon submitted a Driver Medical Evaluation form prepared by Dr. Gela-McHedlish (sp?). AR 23-27. The form noted that Simon was an 88-year-old man with eye problems that corrective lenses could not resolve. AR 23, 27. With or without glasses, his vision was 20/05 in the right eye and 20/30 in the left. AR 24. Simon also had macular degeneration in the left eye and bilateral hyperopia. AR 24-25. Adaptive devices would not compensate for these issues to the point where he can drive safely. AR 25. The form recommended further evaluation from a retinal specialist. AR 24.

The Driver Medical Evaluation form also stated that Simon was otherwise healthy with no significant medical problems. AR 25. He had mild memory loss -- functional impairment as a “natural part of aging” -- but no dementia and no lapse of consciousness disorder. AR 25-26. The doctor recommended that Simon retake the DMV driving test. AR 24.

Also on June 1, 2021, Simon submitted a Report of Vision Examination which stated that Simon received a new lenses prescription on May 28, 2021. AR 28. Without them, his left eye and both eyes combined had 20/40 vision. AR 28. With them, his eyesight was 20/30. AR 28. With or without glasses, Simon’s eyesight in his right eye was “20/CF”. AR 28. Simon’s right eye had a cataract, and both eyes had hyperopia and progressive macular degeneration. AR 28-29. The decreased acuity in Simon’s right eye was rated as 3 (severe). AR 29.

The DMV reviewed the evaluation forms and on August 30, 2021 referred Simon for a road test. AR 18. To pass the road test, Simon could not make any Critical Driving Errors or make more then 20 errors total. AR 20.

The test occurred on September 10, 2021. AR 19. Examiner Silva wrote in her Evaluation Results that Simon did not demonstrate the ability to drive safely and skillfully. AR 19. He continuously and unnecessarily drove 20-25 miles per hour in a 35 mile-per-hour zone. AR 19. He constantly used the brakes, and he removed his seatbelt as he backed the vehicle. AR 19. He did not have proper control of his steering for lane use on the freeway. AR 19. Silva had to give him directions on how to return to the DMV office to complete the test. AR 19. Silva marked on the DL 32 Supplemental/Area Driving Performance Evaluation Score Sheet that Simon’s other errors totaled to 33, beyond the permissible 20. AR 20.^{^[2]}

On September 14, 2021, the DMV notified Simon notice that it would suspend his license, effective September 18, 2021. AR 16. The notice advised Simon of his right to request a hearing within ten days after personal notice or 14 days after notice by mail. AR 17. Simon sought a hearing.

On September 22, 2021, the DMV sent Simon notice that his hearing would take place on October 18, 2021 by telephone. AR 146.

On October 11, 2021, the hearing began, but Simon requested a continuance to October 29, 2021, so that it could take place in person and for him to have more time to file legal documents. AR 38.

On October 15, 2021, the DMV sent Simon notice that it had rescheduled the telephonic hearing for November 5, 2021. AR 141. On October 25, 2021, the DMV sent Simon notice that it had rescheduled the telephonic hearing for November 23, 2021. AR 140.

On November 16, 2021, Simon asked the hearing officer to continue the November 23 hearing by one month. AR 39-40. Simon explained that he needed more time to investigate the case, and subpoena Silva as a witness. AR 39. Silva also had expanded her complaint against him, and he needed time to review it. AR 40.

The hearing officer stated that the purpose of the hearing is to decide whether Simon should receive a license; the hearing officer could not issue or rule on Simon’s application for a temporary license. AR 41-42. When Simon said that he wanted to investigate the drive test area, the hearing officer responded that someone would have to drive him there. AR 42. Simon affirmed that he understood, and the hearing officer agreed to continue the hearing to December 13, 2021. AR 43-44. On November 17, 2021, the DMV sent Simon notice that the telephonic hearing had been rescheduled the December 13 date. AR 137.

On December 13, 2021, Simon asked for another continuance. AR 50. He stated that he still needed to investigate the new facts Silva had added to her final report. AR 53. The hearing officer reminded Simon that the hearing had been continued for that very purpose, and that Simon could not get a temporary license. AR 53-54. Simon could continue the hearing to investigate the facts, but he was prolonging the time he had to spend without a license. AR 55-57.

In a voicemail message to Simon on December 13, hearing officer confirmed the continuance but added that it should not take this long to serve Silva with a subpoena via mail to the DMV. AR 58-59. The hearing officer warned Simon that no further continuance would be granted for the subpoena. AR 59. Later that day, the DMV sent Simon notice that it rescheduled the telephone hearing for January 18, 2022. AR 132.

On January 17, 2022, Simon filed a memorandum in support of his claim that the DMV should restore his license. AR 31-36. The memorandum requested a prehearing conference instead of the hearing on January 18, 2022. AR 31. Simon explained that on December 13, 2021, he attempted to subpoena records from the DMV office in Los Angeles about a road test he took in March 2018. AR 31, 36. A clerk informed him that he would need to subpoena the records from the DMV’s Sacramento office, which he did on January 7, 2022. AR 32. Simon wanted those records to compare the road test conducted in 2018 with Examiner Silva’s road test in September 2021. AR 32.

In a second memorandum, Simon asserted that he had a driver’s license, and the DMV could not take away that fundamental right without due process. AR 33. Simon also disputed the accuracy of Silva’s assessment. AR 34. Silva’s allegation that he drove too slowly in a 35 mile-per-hour zone was an objective error because section 22352(b)(1) sets the speed limit in residential areas at 25 miles per hour. AR 34. Silva also made a subjective error when she alleged that Simon continuously braked. AR 35. Because no one could easily verify or authenticate that subjective claim, it should be discounted as a statement by someone who made an objective error. AR 35. Simon cited to his “excellent physical and mental health” and his 50 years of driving in several states without any violations of Vehicle Code rules and regulations. AR 35.

When the hearing began on January 18, 2022, the hearing officer reiterated that its purpose was to determine whether Simon’s ability to safely operate a motor vehicle is affected by any physical condition. AR 64-65.

The hearing officer marked as Exhibit 1 the suspension notice stating that (1) Simon could not operate a motor vehicle safely because of a physical condition and (2) his driver’s test results were unsatisfactory. AR 65. The hearing officer overruled Simon’s objection that the driver’s test results stemmed from Simon’s refusal to drive faster than permitted in a residential area under section 22352(b)(1), and Exhibit 1 was received in evidence. AR 66-68.

The hearing officer then marked as Exhibit 2 the Driving Evaluation and Road Test Score Sheet. AR 69-70. Simon again objected to the assertion that he drove too slowly in a residential area. AR 70-71. He also objected to Silva’s claim that he could not return to the DMV without her directions. AR 71. The hearing officer overruled the objections and received Exhibit 2 in evidence. AR 72.

The hearing officer then marked as Exhibit 3 Simon’s driving record, which indicated that his license expired on December 11, 2019 and was suspended on September 18, 2021 because of the failed test. AR 72. Simon objected that the rejection of a renewed license after his license expired was a violation of his rights. AR 73. The hearing officer overruled Simon’s objection and received Exhibit 3 in evidence. AR 73. The hearing officer explained that the DMV rejected Simon’s request for a renewed license because his license had been suspended, effective November 2, 2019. AR 73-74.

Simon cited to his excellent 60-to-70-year record of driving in various states without any violations as evidence that the Driving Evaluation and Road Test Score Sheet were unfounded. AR 75. He explained that he tried to get a record of his 2018 driving test but the DMV only holds the record for one year and then sends it to Sacramento. AR 75-76. He thought the record gets purged after three years. AR 76. He just wrote to the Sacramento DMV recently to obtain it. AR 76. He chose not to subpoena Silva because her comments on the Driving Evaluation and Road Test Score Sheet demonstrated her unfitness as an examiner. AR 77. This included her remark that Simon did not drive 35 miles per hour in a residential area, despite section 22352(b)(1)’s speed limit of 20-25 miles per hour. AR 77.

Simon complained that his license was suspended and revoked before he was given a hearing. AR 79, 82, 86. Simon asserted that Silva failed to cite any provision of the Vehicle Code. AR 90. The law does not allow the DMV to suspend his license until this hearing occurred, except for serious offenses. AR 82-83. The hearing officer replied that the DMV could suspend or revoke a license and the driver then had the right to contest the suspension/revocation via hearing. AR 82. Simon asserted that this was true only for serious offenses like drunk driving or an accident. AR 83.

The hearing officer explained that Simon’s failed driving test in Los Angeles on September 10, 2021 prompted the license suspension. AR 79-81. The El Segundo office initially scheduled the driving test. AR 81. Silva stated that Simon drove too slowly in a 35 mph zone but did not say it was a residential area. AR 88. Driving too slowly was not the only reason Simon failed. AR 90. The Driving Evaluation and Road Test Score Sheet also stated that Simon unnecessarily braked continuously and could not drive back to the office without guidance. AR 90.

Simon requested a hearing continuance until he received his 2018 driving test results from the Sacramento DMV. AR 85. The hearing officer denied the request, noting that Simon had received several continuances and had more than enough time to seek this record. AR 85.

On March 2, 2022, the hearing officer notified Simon of a decision that upheld the license suspension based on unsatisfactory drive test results. AR 10-13.

The hearing officer found that Mays submitted a Request for Driver Reexamination. Simon failed to complete the re-examination process by submitting a completed Report of Vision Examination. AR 11. As a result, the DMV suspended his license pursuant to section 13801, effective November 2, 2019. AR 11. When Simon requested a temporary driver’s license, the DMV denied the request based on his license suspension. AR 11.

In June 2021, Simon submitted a Medical Evaluation and a Vision Report. AR 11. The Medical Evaluation reported mild cognitive impairment with short-term memory deficits. AR 11. The physician who prepared it recommended that Simon take a road test. AR 11. The June 2021 Vision Report indicated hyperopia, cataracts, and macular degeneration in both eyes as well as decreased acuity in the right eye. AR 11.

Simon was scheduled for a road test on September 10, 2021, and he failed the test. AR 11. After reviewing the test results, the DMV ended the suspension based on section 13801 and replaced it with suspension based on section 13953. AR 11.

Simon appeared at the January 18, 2022 hearing and explained his position that the September 10, 2021 driving test was “bogus” as Silva stated that he drove too slowly but he mostly drove in a residential area. AR 11. He asserted that he had been driving for 60 to 70 years and had an excellent record. He tried to get a temporary license after his license expired in 2019 but the DMV rejected his request and violated his rights. AR 12. He asked to continue the hearing to subpoena Silva but then decided not to do so. AR 12. He reiterated that the DMV violated his rights by suspending his license without a hearing. AR 12.

Simon was sent forms for a new Medical Evaluation and Vision Report with instructions to have a physician most familiar with his medical history fill them by February 16, 2022. AR 12. He also was directed to schedule a knowledge test because his last knowledge test was in 2020. AR 12. Simon did not follow this instruction. AR 12.

Section 13800 allows the DMV to investigate and reexamine a driver, and section 13801 requires it to do so upon receipt of a request for reexamination. AR 12. Section 12804.9 allows the DMV to test a driver’s knowledge and understanding of the Vehicle Code and subject the driver to an actual demonstration of his ability to exercise ordinary and reasonable control in operating a motor vehicle by driving it under the supervision of an examining officer. AR 12.

Under section 14100, a driver can request a hearing within ten days after notice of an order to suspend or revoke his license based upon documentation of a physical or mental condition or disability. AR 12. This will not stay a suspension or revocation under section 13953 when evidence exists of a physical or mental condition which presents an immediate driving hazard or risk. AR 12.

At the hearing, the driver can rebut the DMV’s evidence or provide new evidence. AR 12. The hearing officer will not terminate the suspension or revocation unless the driver proves the cause for suspension/revocation is removed or does not render him incapable of safely operating a motor vehicle. AR 12. The hearing officer will consider medical evidence and the results of any examination as it relates to the physical and mental requirements and riving factors covered by the re-examination. AR 12.

Simon failed to demonstrate the ability to operate a motor vehicle safely during his driving test. AR 12. The hearing officer accepted Silva’s findings that Simon (1) drove 20-25 miles per hour when the speed limit was 35, (2) completed turns too slowly, (3) braked continuously, (4) removed the seat belt when backing, and (5) had poor steering control in freeway for lane use. AR 12. Simon was also unable to complete the drive and return to his destination without receiving instructions, possibly due to his short-term memory loss. AR 13. Simon rejected all these claims but provided no evidence to rebut them. AR 12-13. He is unable to drive a motor vehicle safely and poses a traffic safety risk. AR 13. Therefore, the suspension remains warranted. AR 13.

The decision notified Simon that he had 15 days to request in writing a departmental review and 94 days to file a mandamus petition. AR 10. Simon requested departmental review. AR 6. The DMV denied departmental review, stating that the hearing officer’s decision was issued on March 2, 2022 and the DMV received Simon’s request on March 22, 2022, 20 days after the decision. The request was untimely. AR 6-7.

Petitioner Simon seeks to set aside the DMV’s decision upholding his driver’s license suspension.

A petitioner has the burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. Moreover, a memorandum of points and authorities is required for a noticed mandamus motion. See CCP §1094; CRC 3.1113(a). The absence of a memorandum is an admission that the motion is not meritorious and may be denied. CRC 3.1113(a).

On appeal, “[a]n appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.” Bullock v. Philip Morris USA, Inc., (2008) 159 Cal.App.4th 655, 685. A court is not required to search the record to ascertain whether it supports an appellant’s contentions, nor make the parties’ arguments for them. Inyo Citizens for Better Planning v. Inyo County Board of Supervisors, (2009) 180 Cal.App.4th 1, 14. When a party asserts a point, but fails to support it with reasoned argument and citation to authority, the point may be treated as waived. Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784, 85; Solomont v. Polk Development Co., (1966) 245 Cal.App.2d 488 (point made which lacks supporting authority or argument may be deemed to be without foundation and rejected).

Simon never served or filed an opening brief. This is violated the court’s order at the September 13, 2022 trial setting where the court ordered him to file an opening brief with citations to the record by October 28, 2022. Simon’s FAP includes a memorandum of points and authorities which cites to its attached exhibits, but this is no substitute for a brief which cites to the administrative record. This alone is sufficient reason to deny the petition.

Assuming, arguendo, that the court is required to consider Simon’s attached memorandum, the FAP must be denied on the merits.

Simon’s principal argument, both before the DMV and now, is that he was denied due process because he did not receive a full and fair administrative hearing that provided him a meaningful opportunity to present his case before his license was suspended. Petrus v. State Department of Motor Vehicles (2011) 194 Cal. App.4th 1240, 1245. Mem. at 4.

The statutory scheme is inconsistent with Simon’s position. The DMV may conduct an investigation to determine whether the privilege of any person to operate a motor vehicle should be suspended or revoked upon receiving information of any grounds for which a license might be refused. §13800(f). In addition to an investigation, the DMV may require the re-examination of the licensee on ten days’ notice. §13801. If the licensee refuses or fails to submit to the re-examination, the DMV may peremptorily suspend the driving privilege of the person until such time as the licensee shall have submitted to re-examination. §13801.

Whenever the DMV determines upon investigation or re-examination that a ground for re-examination is true, or that the safety of the driver or other persons on the highways requires it, the DMV may suspend or revoke the person’s driver’s license upon giving notice and an opportunity to be heard. §§13950-52. In the alternative, the DMV shall suspend or revoke a driver’s license without hearing it determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons upon the highways requires such action. §13953. When the DMV has revoked or suspended a license under, inter alia, section 13953, the driver may, within ten days, demand a hearing which shall be granted. §14100(a).

Thus, the statutory scheme in the Vehicle Code permits a license suspension before a hearing where it determines that the safety of the driver or other persons upon the highways requires such action. §13953. The driver then is entitled to a post-deprivation hearing on the suspension. §14100(a).

That is exactly what happened for Simon. Mays submitted a Request for Driver Reexamination. Simon failed to complete the re-examination process by submitting a completed Report of Vision Examination. As a result, the DMV suspended his license pursuant to section 13801, effective November 2, 2019. Simon requested a temporary driver’s license, which the DMV denied because his license already had been suspended.

Simon submitted the required forms a year and a half later, in June 2021. He took a driving test on September 10, 2021 and failed it. After reviewing the results, the DMV converted the section 13801 suspension to a section 13953 suspension. Simon then received his section 14100(a) post-deprivation hearing in January 2022. The DMV’s actions conformed to the statutory procedure in the Vehicle Code.

Of course, the fact that the DMV followed the statutory scheme does not mean that it complied with due process. The question in a due process case is what process is due? Under the federal three-factor test under Mathews v. Eldridge, (1976) 424 U.S. 319, 335, the court first determines whether there has been a deprivation of liberty or property before engaging in a balancing test of the parties’ interests. The constitutionality of a suspension without any pre-deprivation procedural due process depends on the availability of a post-suspension hearing. Gilbert v. Homar, (1997) 520 U.S. 924, 932 (the government does not have to give an employee charged with a felony a paid leave at taxpayer expense). California’s due process requirement is broader than the federal requirement. Saleeby v. State Bar, (1985) 39 Cal.3d 547. California due process expands on federal law and includes the additional factor of the “dignitary interest” in providing notice and enabling the individual to present their side. Id. at 565.

Simon points to no due case law, state or federal, that he was entitled to a pre-deprivation hearing before his suspension. Nor does the court believe that a pre-deprivation hearing was required. Driving is a privilege, not a right, and there are numerous bases for suspension or revocation in the Vehicle Code. The promptness of the post-deprivation hearing offered under section 14100(a) also undermines any due process concern. Simon sought a hearing on an unstated date after his September 18, 2021 license suspension. The hearing was initial set for October 18, 2021 but was continued multiple times, mostly at Simon’s request. This was a timely post-deprivation hearing.

In any event, Simon had a post-deprivation hearing, and he points to no prejudice suffered by the delay. A due process violation always requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20.

The DMV may investigate to determine whether the privilege of any person to operate a motor vehicle should be suspended or revoked upon receiving information or upon a showing by its records of any grounds for which a license might be refused. §13800(f). The DMV may also require re-examination on ten days’ notice. §13801.

The DMV attempted to reexamine Simon’s ability to drive safely after receiving Mays’ Request for Driver Reexamination explaining that Simon had a medical and a vision condition. Opp. at 9; AR 14-15. Simon asserts that the evidence does not support Mays’ assertions. Mem. at 7-8. This contention is irrelevant. Whether the Request for Driver Reexamination was accurate does not affect the DMV’s right to rely upon it. Mays expressed concern about Simon’s poor vision and that was sufficient to justify the DMV’s re-examination. §13801. When Simon failed to submit the required Vision Report, his license was properly suspended under section 13801.

Simon cites to (1) his ability to pass a timely and lengthy DMV written test, (2) the June 2021 Vision Report which shows that he passed a vision test (AR 28-29), (3) his lengthy driving record without incident (AR 21-22), (4) the June 2021 Medical Evaluation which reported no significant medical problems (AR 23-27), and (5) a record that Simon is in good standing with several state bars. Mem. at 8.

Simon’s driving history and good standing as a lawyer do not bear significantly on his ability to pass a driving test on September 10, 2021. Simon may have been an excellent driver in the past, but the issue is his ability to drive when he was more than 88 years old. Simon’s bar record is not part of the administrative record and cannot be considered even if it were relevant.

Simon “passed” the June 2021 Vision Report and Medical Evaluation only insofar as they prompted the DMV to require a road test. AR 23-29. Both documents reflected significant problems with his vision and physical condition.

The June 2021 Medical Evaluation noted that Simon had eye problems that corrective lenses could not resolve. AR 23. Simon also had macular degeneration in the left eye and bilateral hyperopia. AR 24-25. Adaptive devices would not compensate for these issues to the point where he can drive safely. AR 25. The form recommended further evaluation from a retinal specialist and that Simon take the road test. AR 24. Although it said that Simon’s mild memory loss was a “natural part of aging,” that does not mean it was safe for Simon to drive. AR 27.

The June 2021 Vision Report stated that, even with corrective lenses, Simon’s left eye and both eyes combined had 20/30 vision. AR 28. His right eye has poor vision at 20/CF. AR 28. The right eye also has a cataract, and both eyes have hyperopia and progressive macular degeneration. AR 28-29. The Vision Report rated the decreased acuity in the right eye as 3 (severe). AR 29. While Simon passed a DMV written test, understanding the rules of the road is just one factor for the DMV to consider in whether he can safely operate a motor vehicle. §12804.9(a).

The June 2021 Vision Report and Medical Evaluation support Mays’ allegations and justify the required driving test.

The hearing officer cited Silva’s findings in the Driving Evaluation from the September 10, 2021 road test as the reason why the suspension was upheld. AR 12-13. Silva found that Simon (1) drove 20-25 miles per hour when the speed limit was 35, (2) completed turns too slowly, (3) braked continuously, (4) removed the seat belt when backing, and (5) had poor steering control in freeway for lane use. AR 12, 19. Simon was also unable to complete the drive and return to his destination without Silva’s instructions, possibly due to his short-term memory loss. AR 13, 19. Silva marked on the Road Test Score Sheet that Simon’s errors totaled to 33 deductions, beyond the permissible 20. AR 20.

Simon alleges that the court should discount Silva’s findings that he (1) drove 20-25 miles per hour when the speed limit was 35 and (2) braked continuously. FAP at 5-6; AR 34-35. He argues that the first finding objectively false because section 22352(b)(1) sets the speed limit in residential areas at 25, not 35, mph. Mem. at 6; AR 34. The second finding is subjective, and the court should discredit it because the objective error weakens Silva’s credibility. Mem. at 6; AR 35.

Section 22352(b)(1) sets the speed limit in residential areas at 25 mph unless changed and, if so, only when signs have been erected giving notice of the change. Opp. at 17. The hearing officer and Simon discussed the possibility of Simon investigating the drive test area. AR 42. Simon never presented evidence that a different speed limit was not posted in the residential area. Silva’s finding that Simon drove too far below the speed limit has not been shown to be an objective error. Nor does it somehow compromise Silva’s subjective finding that Simon braked continuously.

As the DMV notes, Simon also fails to address the other traffic violations in the Driving Evaluation. Opp. at 17. There are over 20 violations (AR 20), and they separately provide sufficient basis for Silva’s conclusion that Simon could not safely operate a vehicle. AR 17.

A plaintiff who has been guilty of improper conduct connected with the controversy at hand will be denied by equity any recognition or relief with regard to the controversy.¿ Moriarty v. Carlson, (1960) 184 Cal.App.2d 51.¿ While equity does not demand that a plaintiff lead a blameless life as to other matters, it does require that he have acted fairly and without fraud or deceit as to the controversy in issue.¿ The defense of unclean hands applies to both equitable and legal claims.¿ Pond v. Insurance Co. of North America, 151 Cal.App.3d at 290.

Simon asserts that the unclean hands doctrine prohibits the DMV from requiring him to pass anther road test because the DMV did not correctly apply the law in the negative Driving Evaluation. Mem. at 9-10. Simon reasserts that Silva’s finding about driving too slowly applies the DMV’s own standards and not the Vehicle Code’s 25 mile per hour speed limit. Mem. at 9.

The FAP is denied. The DMV’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Simon for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 23, 2023 at 9:30 a.m.

^{^[1]}All further statutory references are to the Vehicle Code unless otherwise indicated.

^{^[2]} The DMV’s opposition presents a declaration that Simon’s slow driving in a 35 mile-per-hour zone and the failure to return without Silva’s directions were both Critical Errors. Silva Decl., ¶¶ 3-4. This extra-record evidence is inadmissible.

Gerson Simon v. Steve Gordon, Director, Department of Motor Vehicles, 22STCP02151

Tentative decision on motion to amend complaint: denied

Petitioner Gerson Simon (“Simon”) moves for leave to file a Second Amended Petition (“SAP”) in the instant action.

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

Simon seeks a writ of mandate directing the DMV to set aside its decision and issue him a Class C driver’s license.

On December 8, 2022, Simon filed the instant motion for leave to amend the FAP and file the proposed SAP. The hearing on the instant motion is set for the same day as the trial.

California courts employ a liberal approach to amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action. Nestle v. Santa Monica, (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court, (1959) 172 Cal.App.2d 527, 530. Pursuant to this liberal policy, requests for leave to amend will normally be granted unless (a) the party seeking to amend has been dilatory in bringing the proposed amendment before the court; and (b) the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted. Hirsa v. Superior Court, (1981) 118 Cal.App.3d 486, 490. Absent a showing of prejudice, a delay in seeking an amendment alone does not justify denial of leave to amend. Higgins v. Del Faro, (“Higgins”) (1981) 123 Cal.App.3d 558, 564-65. Moreover, where the plaintiff is the party seeking leave to amend, mere proximity to the trial date, absent any prejudice, does not constitute ground for denial if the plaintiff is amenable to a continuance of the trial date. Mesler v. Bragg Mgt. Co., (1985) 39 Cal.3d 290, 297.

The reason for a liberal policy is that if a plaintiff has a good cause of action, which by accident or mistake he has failed to set out in his complaint, the court should permit him to amend. Higgins, supra, 123 Cal.App.3d at 564-65. Hence, where an amendment provides merely the addition of matters essential to make the original cause of action complete, effecting no change in the nature of the case and thus causing no surprise or prejudice to the adverse party, the amendment should be allowed by the court. Id., at 565.

A motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading; (2) be serially numbered to differentiate the amendment from previous amendments; and (3) state the page, line number, and wording of any proposed interlineation or deletion of allegations or material. CRC 3.1324(a). The motion shall be accompanied by a separate declaration specifying the effect of the amendment, why it is necessary and proper, when the facts giving rise to it were discovered, and the reasons why the request for amendment was not made earlier. CRC 3.1324(b).

In ruling on a motion for leave to amend, a trial court will not normally consider the viability of the proposed amendments. Kittredge Sports Co. v. Superior Court, (1989) 213 Cal.App.3d 1045, 1048. The court, however, has discretion to deny an amendment that fails to state a cause of action or defense. Foxborough v. Van Atta, (1994) 26 Cal.App.4th 217, 230. The court also has discretion to deny “sham” amendments -- i.e., those that omit or contradict harmful facts alleged in the original pleading, unless sufficient excuse exists. Green v. Rancho Santa Margarita Mortgage Co., (1994) 28 Cal.App.4th 686, 692; Berman v. Bromberg, (1997) 56 Cal.App.4th 936, 945-946 (sham amendment rule does not apply to change of legal theories).

Simon moves for leave to file the proposed SAP. Simon fails to explain what specific changes have been made in the SAP and where. Mot. at 1-2. Simon also does not provide a declaration explaining why the amendment is necessary and proper. The motion is denied for failure to comply with CRC 3.1324(a) and 3.1324(b).

Assuming, arguendo, that the court is required to consider the merits of the motion, Simon admits that the SAP makes no new arguments. Mot. at 2. The court has identified only two differences between the FAP and SAP. Neither change is contained in the SAP itself, but rather in the memorandum of points and authorities and attached exhibits.

First, the memorandum states that the examiner Silva was “grossly mistaken in alleging that respondent did not drive safely during the road test at 20 to 25 mph.” FAP at 6. The SAP replaces “respondent” with “petitioner.” SAP at 6. The allegation concerns Silva’s conclusion that Simon failed his driving test. A reasonable person reading the FAP would understand that “respondent” refers to Simon because it is his driving that is in question.

Second, the two pages in SAP Exhibit G reverse the order of Exhibit G in the FAP. The pages are: (1) the DMV’s response letter to Simon’s request for the administrative record of the DMV hearing stating that the record was enclosed; and (2) an affidavit dated August 17, 2022 certifying to the authenticity of the record. SAP at Ex. G; FAP at Ex. G. The significance of the change in order, if any, is unexplained.

These inconsequential changes suggest that DMV would not be prejudiced by the filing of the SAP. See Mot. at 2. However, there is no reason to grant the motion because it fails to add any substantive allegation to the case.