Judge James C. Chalfant, Case 22STCP02919 2023-03-07 Tentative Ruling

Plaintiff Cory Randolph (“Randolph”) applies for a preliminary injunction enjoining Defendant Steve Gordon, Director of Department of Motor Vehicles (“DMV”) from suspending Randolph’s driver’s licenses during the pendency of this action.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Plaintiff Randolph filed his Complaint against the DMV on August 4, 2022. The operative pleading is the Second Amended Petition (“SAP”), alleging administrative mandamus. The verified SAP alleges in pertinent part as follows.

Randolph seeks (1) a writ of mandate commanding the DMV to grant his application for an IID license; (2) a writ of mandate commanding the DMV to set aside and revoke orders of suspension issued on August 4, September 6, and September 16, 2022; and (3) injunctive relief compelling the DMV to grant him a driver’s license and stay all suspensions. Randolph also requests that the court declare sections 13352.4(f), 13353.6(a)(1)(c), and 13353.75(a)(1)(C) unconstitutional and issue a writ of mandate enjoining the DMV from enforcing them against any person. Randolph further seeks costs and attorney’s fees under both CCP section 1021.5 and Government Code (“Govt. Code”) section 800.

On August 8, 2022, Randolph filed the First Amended Petition (“FAP”). On August 9, 2022, he served DMV with the Petition and FAP.

On August 11, 2022, the court denied Randolph’s ex parte application for a Temporary Restraining Order (“TRO”) and Order to Show Cause (“OSC”) re: preliminary injunction enjoining the DMV from suspending his driver license effective August 8, 2022 and refusing his application for an IID-restricted driver license under section 13352(a)(3). The court ruled that he had not shown that the TRO would not be against the public interest.

On August 26, 2022, Department 82 (Hon. Mary Strobel) denied Randolph’s request to relate this case to Dustin Taylor Duket v. DMV, (“Duket”) 22STCP00664.

On December 1, 2022, Department 1 (Hon. David Cowan) denied Duket and Randolph’s motion to relate this case to Duket.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

When the DMV determines that an applicant is lawfully entitled to a license, it shall issue to the person a driver’s license as applied for. §12811(a)(1)(A). The word “issues” includes both the original issuance and the reissuance. Stackler v. Dep't of Motor Vehicles (1980), 105 Cal. App. 3d 240, 243.

When a driver is arrested for a DUI, there are two separate processes for license suspension: criminal conviction and administrative per se suspensions, which operated independently from each other. Brierton v. DMV, (2006) 140 Cal.App.4^th 427, 436.

The DMV shall immediately suspend or revoke the privilege of a person to operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the person has been convicted of a violation of sections 23152, 23153, 23109(a), or 23109.1. Vehicle Code[3] §13352(a). A driver is not entitled to a hearing before a conviction suspension is imposed, and there are no due process concerns, because the facts have already been determined in the criminal proceeding. August v. Dep't of Motor Vehicles, (“August”) (1968) 264 Cal. App. 2d 52, 59.

Upon the first conviction for a DUI, the privilege shall be suspended for a period of six months. §13352(a)(1)(A). Upon a second conviction within ten years per section 23540, the privilege shall be suspended for a period of two years. §13352(a)(3)(A).

In either case, unless the conviction is for use of drugs under section 312, the DMV shall advise the person that they may apply for a restricted driver’s license if the person (ii) satisfactorily provides to the DMV, subsequent to the violation date of the current underlying conviction, enrollment in, or completion of, a DUI program licensed pursuant to Health and Safety Code (“H&S Code”) section 11836, (iii) agrees as a condition of the restriction to continue satisfactory participation in the program, (iv) submits verification of installation of an ignition interlock device (“IID”) and agrees to maintain the IID, (v) provides proof of financial responsibility, (vi) pays all reissuance fees and any restriction fee required by the DMV, and (vii) pays the DMV a fee sufficient to cover the reasonable costs of administering these requirements. §§ 13352(a)(1)(A), (a)(2)(A).

The restrictions shall remain in effect for the duration of suspension. §13352(a)(1)(B), (a)(3)(B). The suspension is six months for a first offender and two years for a second offender. §13352(a)(1)(A), (a)(3)(A). The driving privilege shall not be reinstated until the person gives proof of financial responsibility and gives proof satisfactory to the DMV of successful completion of a DUI program. §§ 13352(a)(1)(A), 13352(a)(2)(A). Credit shall not be given to any program activities completed prior to the date of the current violation. §§ 13352(a)(1)(A), 13352(a)(2)(A).

A person qualified for an IID as a first or second offender is entitled to the issuance of a restricted license. Matteo v. DMV, (2012) 105 Cal.App.3d 240, 243.

The DMV shall suspend a licensee’s restricted driving privileges upon receipt of notification from the DUI program that the person has failed to comply with the program requirements. §13352(e)(2).

The DMV shall immediately suspend the privilege of a person to operate a motor vehicle if the person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood. §13353.2(a)(1). The order shall become effective 30 days after notice to the person. §13353.3(a). The period of the suspension will be four months if the person has not been convicted of a separate applicable violation, or administratively determined to have committed a DUI on a separate occasion, within ten years of the violation at issue. §13353.3(b)(1)(A). If there has been such a violation, the suspension shall be for one year. §13353.3(b)(2)(A).

If the person requests a hearing to challenge the suspension and the DMV cannot complete the hearing before the suspension would go into effect, the suspension is stayed pending the hearing determination. §§ 13558(b), (d), (e).

A person with a suspended license under section 13353.2. and who has been previously convicted of a DUI within the past ten years, may apply for a restricted driver’s license if, among other requirements, the person satisfactorily provides proof of enrollment in a DUI program licensed under H&S Code section 11836. §13353.75(a)(1)(A). The program shall report any failure to participate in the program to the DMV. §13353.75(a)(1)(B). If a person who has been issued such a restricted license fails at any time to participate in the program, the DMV shall immediately terminate the restriction and reinstate the suspension of the privilege to operate a motor vehicle. §13353.75(a)(1)(C).

The DMV shall require that a person whose driver’s license has been revoked, suspended, or restricted under section 13353.2 or 13353.3 provide, as proof of financial responsibility, a certificate or certificates that covers all motor vehicles registered to the person before reinstatement of his or her driver’s license. §16431(b).

H&S Code section 11836(a) authorizes the Department of Health to license private entities to provide DUI education programs. H&S Code section 11836.15 authorizes the Department of Health to adopt regulations for the guidance of the programs, which have become Title 9 of the California Code of Regulations (“CCR”). H&S Code section 11837(a) requires the DMV to restrict the driving privileges of anyone convicted of DUI under section 13352 if the person participates for at least 18 months in a licensed DUI program.

The DUI program shall require the participant to request a leave of absence whenever the participant is unable to attend any scheduled program activities for 21 days or longer. 9 CCR §9876.5(a). The DUI program director or designee shall approve a leave of absence only for specific reasons. 9 CCR §9876.5(e).

The DUI program shall dismiss from the program any participant who fails to attend program services for 21 days or longer without obtaining a leave of absence in accordance with 9 CCR section 9876.5. 9 CCR §9886(a)(5). The program shall provide the court, DMV, and program participant with an immediate report of any failure of the person to comply with the program’s rules and policies. H&S Code §11837.1(a). If such a fact is reported, the DMV shall suspend the privilege of that person to operate a motor vehicle for the period prescribed under Vehicle Code section 13352.5. H&S Code §11837.1(b).

The court of the original conviction retains jurisdiction as to all related post-conviction matters. H&S Code §11837.2(f).

The word “shall” in the Vehicle Code means that an action is mandatory. §15.

Whenever the DMV has given notice of, has taken, or proposes to take action under sections 12804.15, 13353, 13353.2, 13950, 13951, 13952, 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). An application for a hearing does not stay the action by the department for which the notice is given. §14100(b). This right must be made prominent on the notice of the DMV action. §14100(c).

A person is not entitled to a hearing if the DMV action is mandatory under the Vehicle Code. §14101(a).

Other than the DUIs at issue in this case, Randolph’s driving record does not contain any accidents or DUI arrests. Freestone Decl., ¶¶ 10(n)-(o), Ex. 1.

On September 17, 2021, Randolph was arrested for DUI[4] in Riverside County. Freestone Decl., ¶4, Ex. 2.

On November 25, 2021, Randolph was arrested for a second DUI in Los Angeles County. Freestone Decl., ¶5, Ex. 3.

On November 29, 2021, Randolph voluntarily admitted himself to Monarch Shores LLC (“Monarch”), a residential drug and alcohol treatment facility. Randolph Decl., ¶33, Ex. 4. He remained in its program until he completed it on July 17, 2022, with no disciplinary problems. Randolph Decl., ¶33, Ex. 4.

Randolph did not request an administrative per se hearing for the Los Angeles DUI. On December 28, 2021, the DMV imposed an administrative per se suspension of his license based on this DUI arrest pursuant to section 13353.2. Freestone Decl., ¶10(e), Ex. 1. Because this was his first DUI, the suspension was for four months, from January 31 through May 30, 2022. Freestone Decl., ¶10(e).

Randolph requested an administrative per se hearing for the Riverside DUI arrest. On February 4, 2022, the DMV issued the Riverside DMV decision suspending Randolph’s license pursuant to 13353.2. Freestone Decl., ¶10(f), Exs. 1, 5. The suspension was for one-year, from February 11, 2022 through February 10, 2023, for a second violation within ten years under If section 13353.3(b)(2)(A). Freestone Decl., ¶10(f), Exs. 1, 5.

On March 2, 2022, Randolph pled guilty to the Riverside DUI. Randolph Decl., ¶9, Ex. 2. The court put him on probation for 60 months and required that he attend 22 Alcoholics Anonymous (“AA”) meetings and complete an impaired driver program. Ex. 2.

On March 17, 2022, the DMV issued an Order of Suspension automatically suspending Randolph’s license as a result of the Riverside DUI conviction under section 13352(a)(1). Ex. 6. Randolph’s DMV history also shows that his license was suspended for six months after a first DUI criminal conviction under §13352(a)(1)(A). Freestone Decl., ¶10(g), Ex. 1. The suspension was effective from March 2, 2022 to at least August 14, 2022. Ex. 6. After August 14, the DMV would lift the suspension only if Randolph provided proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 6. However, Randolph could immediately apply for a restricted driver license to drive a vehicle with an IID per section 13352(a)(1). Ex. 6. The Order of Suspension was independent of any court action. Ex. 6.

On March 28, 2022, Randolph obtained a DMV California Insurance Proof Certificate (SR-22). Randolph Decl., ¶¶ 4-5, Ex. 7.

On April 19, 2022, Randolph enrolled in Academy’s 18-month DUI program. Randolph Decl., ¶10. Academy advised him that it would drop him if he did not attend class for 21 days after the program began and also advised him that it would drop him if he was convicted in court. Randolph Decl., ¶¶ 11-12. Academy provided him with a class schedule that showed that his first three scheduled activities were on May 4, 10, and 18, 2022. Randolph Decl., ¶13, Ex. 8.

Randolph installed the IID in his vehicle on April 20, 2022. Randolph Decl., ¶6; Freestone Decl., ¶10(b), Ex. 9. The DMV issued Randolph an IID restricted license on April 21, 2022, per sections 13352(a)(1), 13353.75, and 13353.6. Randolph Decl., ¶16; Freestone Decl., ¶¶ 10(h)-(j), Exs. 1, 10.

Monarch had events on May 4 and 10, 2022 and Randolph missed the Academy classes on those days. Randolph Decl., ¶15. He planned to attend the Academy class on May 18, 2022. Randolph Decl., ¶15. On May 12, 2022, the Academy issued a discharge report that terminated Randolph from the program for 21 days of non-activity with his last activity on April 19, 2022. Firestone Decl., ¶10(c), Exs. 1, 11. The report recommended reinstatement to complete all remaining hours. Firestone Decl., ¶10(c), Ex. 11.

On May 17, 2022, Randolph’s brother committed suicide. Randolph Decl., ¶17. On May 18, 2022, Academy informed Randolph of his termination from its program for 21 days of non-activity. Randolph Decl., ¶18. Randolph contacted the Academy to explain that his brother had passed away and that he (Randolph) had not failed to attend scheduled activities for 21 days. Randolph Decl., ¶19. The Academy advised Randolph that he needed to return to court to obtain another referral to the program, but that he should wait until his Los Angeles DUI was resolved because he would be dropped from the program upon conviction anyway. Randolph Decl., ¶19. Randolph decided to follow this advice. Randolph Decl., ¶20.

On July 14, 2022, Randolph pled nolo contendre to the Los Angeles DUI. Randolph Decl., ¶21, Ex. 3. On July 19, 2022, he enrolled in Gold Coast’s 18-month DUI program as a multiple offender. Randolph Decl., ¶22, Exs. 1, 12.

On August 1, 2022, the DMV issued an Order of Suspension automatically suspending Randolph’s license as a result of the Riverside and Los Angeles DUI convictions under section 13352(a)(3). Ex. 13. The suspension was effective from July 14, 2022. Ex. 13. To have his license restored, Randolph would have to prove installation of an IID and drive with the IID restriction on his license for 12 months, provide proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 13. The Order of Suspension was independent of any court action. Ex. 13. To obtain an IID restricted license, Randolph would have to clear all other outstanding actions on his record, including suspensions and revocations. Ex. 13.

Also on August 1, 2022, the DMV issued an Order of Probation and Suspension suspending Randolph’s license, effective September 4, 2022, through March 2, 2023, pursuant to sections 12809(e), 13359, 14103, and 14250. Freestone Decl., ¶10(l), Ex. 14. The DMV found that Randolph was a negligent operator under section 12810.5 as a result of his two DUI convictions. Freestone Decl., ¶10(l), Ex. 14. The order informed Randolph that he could request a hearing to contest that he was a negligent operator. Freestone Decl., ¶10(l), Ex. 14. He had to surrender his license by September 4, 2022 if he did not. Freestone Decl., ¶10(l), Ex. 14.

On August 3, 2022, Randolph went to a DMV field office for an IID restricted license. Randolph Decl., ¶25. The DMV said that he was not eligible for an IID restricted license because of his suspensions for his termination from the Academy and his status as a negligent operator. Randolph Decl., ¶25.

On August 8, 2022, Randolph requested a hearing to contest his status as a negligent operator. Freestone Decl., ¶2. The DMV scheduled the hearing for November 1, 2022 but then rescheduled it for April 4, 2023. Freestone Decl., ¶2, Exs. 15-16.

On September 6, 2022, the DMV sent Randolph an Order of Suspension, effective September 10, 2022, for failure to comply with the terms of a DUI program pursuant to section 13352(e)(2). Ex. 17. The Order did not list the date of the offense. Ex. 17.

On September 16, 2022, the DMV sent Randolph two Orders of Suspension, both effective September 20, 2022, for failure to comply with the terms of a DUI program. Ex. 18. One Order was issued pursuant to section 13352(e)(2) and the other Order was issued pursuant to section 13353.75(a)(1)(C). Ex. 18. Both cited the violation date as September 17, 2021. Ex. 18.

Both of Randolph’s administrative per se decisions and the suspension for the Riverside DUI conviction have expired. Markelz Decl., ¶4.

As of January 19, 2023, Randolph’s driving record shows that his license was suspended for the second criminal conviction in the Los Angeles DUI case, effective July 14, 2022, pursuant to section 13353(a)(3). Freestone Decl., ¶11a. His license was suspended again on September 6 2022, pursuant to section 13352(e)(2) for failure to comply with a DUI education program, effective September 10, 2022. Freestone Decl., ¶11b, Ex. 19. His license also was suspended on September 16, 2022 pursuant to section 13353.75, effective September 20, 2022 and ending February 10, 2023. Freestone Decl., ¶11b, Ex. 19.

Randolph has remained sober and has not received a traffic ticket or been involved in a traffic accident since the Los Angeles DUI. Randolph Decl., ¶¶ 32 34. With an IID in place, Randolph cannot drive his vehicle if he has consumed alcohol. Randolph Decl., ¶35.

Randolph is a network engineer and cannot rely on public transportation for his driving needs. Randolph Decl., ¶¶ 27-28. Without the ability to drive, he cannot maintain employment in his profession and cannot meet his living expenses. Randolph Decl., ¶¶ 29-30. He also needs a vehicle to attend DUI program activities, primary care doctor’s appointments, dental visits, eye exams, and AA meetings. Randolph Decl., ¶31.

Petitioner Randolph seeks a preliminary injunction enjoining the DMV from suspending his IID restricted driver’s license during this action.

A person whose driver’s license is suspended by administrative per se suspension under sections 13353.2 and 13353.3 does not need to enroll in or complete a DUI program for reinstatement. Mot. at 17. Once the suspension ends, the only requirement is that he submits proof of financial responsibility (SR-22) per section 16431(b). Mot. at 17.

Randolph has a proof of financial responsibility on file (SR-22). His first four month administrative per se suspension for the Los Angeles DUI ended on May 30, 2022. Freestone Decl., ¶10(e). His one-year suspension imposed for the Riverside DUI after an administrative per se hearing for a second violation within ten years under section 13353.3(b)(2)(A) ran from February 11, 2022 through February 10, 2023, and has been completed. See Freestone Decl., ¶10(f), Exs. 1, 5. Both suspensions have expired and cannot serve as a basis for denying an IID restricted license.

Upon the first conviction for a DUI, a driver’s privilege shall be suspended for a period of six months. §13352(a)(1)(A). Upon a second conviction within ten years per section 23540, the privilege shall be suspended for a period of two years. §13352(a)(3)(A).

The DMV shall suspend a licensee’s restricted driving privileges upon receipt of notification from the DUI program that the person has failed to comply with the program requirements. §13352(e)(2).

On March 2, 2022, Randolph pled guilty to the Riverside DUI. Randolph Decl., ¶9, Ex. 2. As a result of the Riverside DUI conviction, on March 17, 2022 the DMV automatically suspended Randolph’s license for six months as a first offense under section 13352(a)(1). Ex. 6; Freestone Decl., ¶10(g), Ex. 1. The suspension was effective from March 2, 2022 to at least August 14, 2022. Ex. 6. After August 14, 2022, the DMV would lift the suspension only if Randolph provided proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 6. The DUI program must be completed after the date of the current violation. §13352(a)(3)(A). Randolph could immediately apply for a restricted driver license to drive a vehicle with an IID per section 13352(a)(1). Ex. 6.

On April 19, 2022, Randolph enrolled in Academy’s DUI program. On April 20, 2022 he installed an IID in his vehicle. On April 21, 2022, Randolph obtained an IID restricted license for the March 2, 2022 Riverside conviction.

On May 10, 2022, Academy terminated him from its DUI program. On September 16, 2022, the DMV suspended Randolph’s license under section 13352(e)(2), effective September 20, 2022, for a violation on September 17, 2021 (the Riverside DUI). Ex. 18.

The Riverside DUI suspension ended on August 14, 2022 and remains in effect only because Randolph has not completed his DUI program. Since Randolph has not completed his DUI program, he is not eligible for reinstatement from the suspension for the Riverside conviction. See Mot. at 16-17.

Randolph was convicted of the Los Angeles DUI on July 14, 2022. Randolph Decl., ¶21, Ex. 3. As a result of his second DUI conviction within ten years, on August 1, 2022, the DMV automatically suspended Randolph’s license for two years under section 13352(a)(3). Ex. 13. The suspension was effective from July 14, 2022. Ex. 13. To have his license restored, Randolph must prove installation of an IID and drive with the IID restriction on his license for 12 months, provide proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 13.

On September 6, 2022, the DMV suspended Randolph’s license under section 13352(e)(2), effective September 10, 2022, for failure to comply with the terms of a DUI program. Ex. 17. The suspension does not indicate the date of violation/conviction to which it relates. Id. On September 16, 2022, the DMV also suspended Randolph’s license under section 13353.75(a)(1)(C), effective September 20, 2022, for failure to comply with the terms of a DUI program. Ex. 18. Again, there is no indication of the date of violation/conviction to which it relates.

Randolph argues that his January 19, 2023 driving history report shows that the September 6 suspension is related to the Los Angeles DUI conviction and contends that this entry is an error. He was never issued a restricted license for suspension based on the Los Angeles conviction and the suspension cannot be based on his failure to complete a DUI program pursuant to a restricted license. Mot. at 18.

As the DMV notes, this is why the September 6, 2022 suspension cannot be based on the Los Angeles DUI conviction. Opp. at 11. The restricted license issued after Riverside DUI conviction included a requirement that Randolph attend a DUI program. Randolph Decl., ¶9, Ex. 2. Enrollment in a DUI program cannot predate the underlying conviction. §13352(a)(3). Randolph enrolled in Academy’s program on April 19, 2022, before his conviction for the Los Angeles DUI. Randolph Decl., ¶10. Therefore, the September 6 and 16 suspensions cannot relate to the Los Angeles DUI and must relate to the Riverside DUI. Randolph’s SAP acknowledged this fact, alleging that the September 6 suspension refers to his failure to complete the program with the Academy. SAP, ¶¶ 98-99.

Randolph has not demonstrated that the DMV erred in issuing the September 2022 suspensions.

A “DUI program shall dismiss from the program any participant who: “Fails to attend program services for 21 days or longer without obtaining a leave of absence in accordance with [9 CCR] section 9876.5….” 9 CCR §9886(a)(5).[5] The program shall provide the court, DMV, and program participant with an immediate report of any failure of the person to comply with the program’s rules and policies. H&S Code §11837.1(a). The DMV shall suspend a licensee’s restricted driving privileges upon receipt of notification from the driving-under-the-influence program that the person has failed to comply with the program requirements. §13352(e)(2); H&S Code §11837.1(b).

On April 19, 2022, Randolph enrolled in Academy’s 18-month DUI program. Randolph Decl., ¶10. The class schedule showed that the next three scheduled activities were on May 4, 10, and 18, 2022. Randolph Decl., ¶13, Ex. 8. Because Randolph’s rehabilitation program Monarch had events on May 4 and 10, 2022, Randolph missed the Academy classes on those days. Randolph Decl., ¶15. He planned to attend the class on May 18, 2022. Randolph Decl., ¶15. However, by May 12, 2022, the Academy had sent the DMV a discharge report that terminated Randolph from the program for 21 days of non-activity beginning April 19, 2022. Firestone Decl., ¶10(c), Exs. 1, 11.

Randolph asserts that the 21-day calculation pursuant to 9 CCR section 9886(a)(5) began on May 4, 2022, the first class he failed to attend. As a result, he was only absent for seven days when he was terminated by Academy on May 10. Mot. at 18.

The DMV responds that Randolph’s position lacks any supporting authority and asserts that Academy was correct to calculate the 21-days period beginning on April 19, 2022, the day that Randolph enrolled in the program. The DMV notes that Randolph failed to attend any program services for the first 21 days of his enrollment and argues that he was properly terminated. Randolph could have sought a leave of absence from the DUI program per 9 CCR section 9876.5 but did not do so. Opp. at 10-11.

Neither party provides authority for the proper construction of 9 CCR section 9886(a)(5) and the matter is not free from doubt. The plain language of the provision would suggest that attendance at “program services” is not the same as attendance at “classes”. On the other hand, the court has no evidence that DUI programs offer any program services other than classes. If they do not, then perhaps the term “program services” should mean classes, which would support Randolph’s position.

The policy behind the regulation – which is to require regular attendance -- may make more sense if the 21 days begins upon enrollment. Otherwise, if an enrollee attended a class and another class was not scheduled for another week, the 21-day period would not start until the missed class. Such an interpretation may not be consistent with the policy of requiring regular attendance. Public policy alone cannot control the interpretation of a regulation, however, and the court needs more information about the purpose and legislative history of the regulation to reach a conclusion.

At this stage, Randolph has not demonstrated a probability of success that Academy should not have dismissed him under 9 CCR section 9886(a)(5).

Randolph notes that he is not entitled to a hearing if the DMV action is mandatory under the Vehicle Code. §14101(a). The word “shall” in section 13352(e)(2) indicates that action is mandatory. §15. Randolph acknowledges that the automatic suspension of his license because of termination from his DUI program was required by section 13352(e)(2) and argues that the statute is an unconstitutional violation of due process without a hearing. He further acknowledges that only the court, not the DMV, may make this determination. Lockyer v. City and County of San Francisco, (2004) 33 Cal.4^th 1055 1068, 1081(official charged by statute with ministerial duty may not declare it unconstitutional); Lund v. California State Employees Assn., (1990) 222 Cal.App.3d 174, 183 (constitutional claim against statute need not be raised to agency enforcing it. Mot. at 19.

Randolph argues that the high court concluded in Bell v. Burson, (1971) 402 U.S. 535-37 and Dixon v. Love, (1977) 431 U.S. 105, 106, that a driver’s license issued by a state is a protected property interest that may not be suspended or revoked without due process, and in Mackey v. Montrym, (1979) 443 U.S. 1, 4, that due process is satisfied where an implied consent statute requires an immediate suspension for a refusal to take a chemical test if a post-suspension hearing is immediately available for correction of administrative error. Mot. at 19-20.

Randolph argues that he has no mechanism for review of the automatic suspension based on his suspension under sections 13352(e)(2) and 13353.75(a)(1)(C) for failure to comply with the terms of Academy’s DUI program. He acknowledges that a preliminary injunction generally cannot be issued to prevent the execution of a statute by public officers, but notes that injunctive relief is available where the officers operate under an unconstitutional statute. Randolph concludes that section 13352(e)(2) is unconstitutional as applied to him. Mot. at 20-21.

Determination of the dictates of due process generally requires consideration of four factors: (1) the private interest that will be affected by the individual action; (2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value, if any, of additional or substitute safeguards; (3) the dignitary interest of informing individuals of the nature, grounds and consequences of the action and of enabling them to present their side of the story before a responsible governmental official; and (4) the government interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Oberholzer v. Commission on Judicial Performance (“Oberholzer”) (1999) 20 Cal.4th 371, 390-91, n. 16 (citing Mathews v. Eldridge, (1976) 424 U.S. 319, 334).

As the DMV notes (Opp. at 12-13), Randolph bears a heavy burden in demonstrating that section 13352(e) violates due process. City of Los Angeles v. Superior Court, (2002) 29 Cal.4^th 1, 10-11. Randolph’s moving papers fail to meet that burden because they do not make any effort to weigh the private and governmental interests in the deprivation, the risk of erroneous deprivation, and the dignity interest. Randolph purports to do so in reply after the DMV’s opposition discusses them, but this is insufficient. The DMV was entitled to know Randolph’s position on this weighing process from his moving papers and the court is entitled to have the DMV’s assessment of Randolph’s discussion before it.

At this stage, Randolph has not demonstrated a probability of success on the merits.[6]

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

Randolph asserts that as a network engineer, he cannot rely on public transportation for his driving needs. Randolph Decl., ¶¶ 27-28. Without the ability to drive, he cannot maintain employment in his profession and cannot meet his living expenses. Randolph Decl., ¶¶ 29-30. He also needs a vehicle to attend DUI program activities, primary care doctor’s appointments, dental visits, eye exams, and AA meetings. Randolph Decl., ¶31.

As the DMV notes, Randolph’s claim that public transportation or alternatives such as Uber or Lyft cannot meet his needs is too broad. Opp. at 19. The suspension has been in effect for several months and Randolph should have examples of how this restriction has hindered him, including evidence of client visits he could not make as a network engineer, complaints from his supervisors about decreased efficiency, and notes about missed doctor and dental appointments.

The DMV asserts that there is a compelling government interest in keeping the roads safe by making sure that drivers with two prior DUI convictions do not drive again until they are authorized to do so. Opp. at 19. This is true, but Randolph only asks for restoration of his IID restricted license, and the IID reduces the public harm because Randolph cannot drive the vehicle if he consumes alcohol beforehand. Randolph Decl., ¶35, Ex. 10. Randolph also provides evidence that he has not consumed alcohol, received a traffic ticket, or been involved in a traffic accident since the Los Angeles DUI arrest. Randolph Decl., ¶¶ 32, 34, Ex. 1.

CCP section 1094.5(g) requires that a stay not be against the public interest. Neither party directly addresses this issue, instead doing so by discussing the balancing of the parties’ harms. While there is a strong public interest in preventing a person with two DUI convictions from driving unless authorized by law, the Vehicle Code provisions at issue demonstrate that the Legislature believes it is better to allow a DUI offender with a second conviction to drive with an IID than to face the risk that he or she will drive unlawfully without one. See i§13352(a)(3)(E). The public interest lies in permitting Randolph to drive with and IID.[7]

The motion for a preliminary injunction will be continued for the parties to provide supplemental briefing that addresses two issues for purposes of probability of success: (a) the proper interpretation of 9 CCR section 9886(a)(5), including the DHCS’s statements of purpose, intent, or prior construction, including whether Randolph’s suspension from the program was required as a matter of law; and (b) the Mathews v. Eldridge/Oberholzer factors for the constitutionality of section 13352(e) as applied to Randolph’s case.

[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[3] All further statutory references are to the Vehicle Code unless otherwise stated.

[4] For purposes of this motion, the court need not distinguish between driving with a .08 or greater blood alcohol content (§23152(b)) and driving under the influence (§23152(a)).

[5] The Department of Health Care Services (“DHCS”) has sole authority to license DUI programs. H&S Code §11836. A court may refer a person only to licensed programs. H&S Code §11837.2(a)(1).

[6] Randolph will have an administrative suspension hearing on April 4, 2023 for the DMV’s contention that he was a negligent operator of a vehicle. A person with a point count of four or more points in 12 months shall be presumed to be a negligent operator of a motor vehicle. §12810.5. Randolph points out that each of his DUI convictions is worth two points and argues that he has not had four points within the past 12 months. Mot. at 23.

Randolph’s argument is premised on a conclusion that the pertinent period is the 12 months before the administrative hearing as opposed to the 12 months before the date of his suspension. Randolph had 4 points at the time of his September 2022 suspension and his administrative suspension was stayed pending the hearing determination (§§ 13558(b), (d), (e)), meaning that the suspension was based on the point total at the time of suspension. The stay on Randolph’s suspension may well be lifted by the DMV on April 4, 2023.

[7] The DMV argues that Randolph can achieve his opportunity to be heard through the criminal court’s jurisdiction over his compliance with the DUI program or a traditional mandamus claim against Academy. Opp. at 17. The Riverside DUI criminal court has jurisdiction over Randolph’s criminal case, including his compliance with his DUI program, under H&S Code section 11837.2. While the criminal court can order Randolph to be reinstated to a DUI program, it has no jurisdiction to order that the DMV give him a restricted license under section 13352.5.

The DMV also argues that Randolph has a remedy of traditional mandamus against Academy, citing Rodriguez v. Department of Real Estate, (“Rodriguez”) (1996) 51 Cal.App.4^th 1289. Opp. at 17-18.

Rodriquez concerned the suspension of a real estate broker’s license after the real estate department granted the claim for payment by a client defrauded by the broker. Id. at 1289. The administrative procedure permitted the department to rule on the client’s claim after notification to the broker and receipt of written argument. Id. at 1289. In notifying the broker of the claim, the department informed the broker that, if the claim was granted, his license would automatically be suspended until such time as he reimbursed the department for its payment to the client. Id. This notice and opportunity to be heard satisfied due process. Id.

Rodriguez is distinguishable as a case in which due process was satisfied by notice and an opportunity to be heard on the ground that caused his automatic suspension – payment of the client’s claim -- whereas Randolph has not had an opportunity to be heard on his violation of DUI program requirements. Randolph also is correct that an agency cannot avoid its due process obligations by compelling him to sue a third party. Reply at 8.