Judge James C. Chalfant, Case Number: 24STCP01636, Date: 2024-12-12 Tentative Ruling

Ida P. Fung v. Steve Gordon,

24STCP01636

Tentative decision on motion for judgment: denied

Respondent Steve Gordon, Director for the Department of Motor Vehicles (“DMV”), moves for judgment pursuant to CCP section 1094.

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

Petitioner Fung commenced this proceeding on May 21, 2024, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

On October 11, 2021, Sierra Madre Police Department (“SMPD”) Officer Raymond So (“So”) contacted Petitioner Ida P. Fung (“Fung”) and cited her for a misdemeanor hit-and-run. Officer So made a report regarding the contact on DMV form DS-427. Officer So confiscated Fung’s driver’s license, even though she explained that the vehicle involved in the incident was not operated or owned by her. Fung explained that she owned a similar looking vehicle, but her vehicle did not have the significant damage described regarding the subject’s vehicle.

Based on the incident, charges were brought against Fung under Vehicle Code section 20002, which pertains to damage to property, not persons. These charges contradicted Officer So’s report regarding the subject vehicle attempting to hit a person as opposed to property. Ultimately, the charges against Fung were dismissed during a jury trial on January 10, 2023.

Fung timely requested a DMV hearing, and the first hearing occurred on March 7, 2022. At the hearing the DMV marked five exhibits: (1) Order of Suspension/Revocation, (2) Law Enforcement Referral dated 10/11/2021, (3) DMV Driver Knowledge Test, (4) DMV Vision Test, and (5) a Driver Medical Evaluation dated 2/2/2022. Officer So did not testify at this hearing or the other hearing held by the DMV.

The second hearing occurred on February 2, 2023. Between the hearings, Fung provided the DMV with a satisfactory physical and mental evaluation, a satisfactory vision evaluation, and a passed score on the Driver Knowledge Test. At the second hearing, Fung testified that the only vehicle she owns and operates did not have any significant damage and that she was not involved in the incident for which her license was suspended. Furthermore, the criminal charges filed against her in LASC No. PAS2PD25158-01 had been dismissed during a jury trial on January 10, 2023. Hearing Officer Maria Herrera either did not understand this fact or arbitrarily ignored it.

On March 13, 2023, Hearing Officer Herrera issued a Notice of Decision and Finding (“decision”) which maintained the October 18, 2021 suspension of Fung’s driver’s license. The decision was improper because Fung was subjected to an unlawful and prolonged seizure of her driver’s license without probable cause; the criminal court dismissed the misdemeanor case against Fung months prior to the decision, and the Hearing Officer’s summary dismissal of Fung’s unrefuted and reasonable testimony was not warranted.

A motion for judgment under CCP section 1094 is a mechanism to obtain a streamlined review on a particular undisputed issue based on undisputed facts or the administrative record. Dunn v. County of Santa Barbara, (2006) 135 Cal.App.4^th 1281, 1293. See also 2 CEB California Administrative Mandamus §13.23 (3d ed. 2007).

When a question of fact is raised by the respondent’s answer, the petitioner has the right to countervail it with proof. CCP §1091; Lassen v. City of Alameda, (1957) 150 Cal.App.2d 44, 47. If the facts are undisputed or only a question of law is raised, the court may hear the matter upon the papers filed and argument. Id. at 47. The petitioner also may waive the right to present evidence and the matter may be heard under CCP section 1094. Ibid. If a question of fact is raised by the answer, a CCP section 1094 motion is not appropriate, and the matter must be heard at trial. See id. at 48.

In denying a CCP section 1094 motion, the court may decide that the facts are disputed and hence the motion is procedurally defective, or it may decide that the undisputed facts/record show the moving party cannot prevail on that issue.

Petitioner Fung is a California resident with no significant violations or infractions on her 45-year driver’s record. AR 174-75.

On October 11, 2021, Officer So cited Fung for a violation of Vehicle Code section 20002, misdemeanor hit and run. Officer So referred Fung to the DMV for reexamination due to unsafe driving. AR 173.

Fung participated in the DMV reexamination process but did not successfully pass reexamination due to an unsuccessful driver knowledge exam and vision exam. AR 2. Therefore, on October 18, 2021, the DMV suspended Fung’s driving privileges pursuant to Vehicle Code section 13953, effective October 18, 2021. AR 2.

Fung contested the suspension. Accordingly, on March 7, 2022, she appeared before a Driver Safety Hearing Officer for a Lack of Knowledge/Lack of Skill Interview or hearing to determine if her ability to operate a motor vehicle safely was affected. AR 149. The examiner found that Fung numerous reckless driving errors during the 27-minute road test evaluation. AR 149-50.

On March 22, 2022, DMV Hearing Officer D. Cotton sustained the suspension of Fung’s privilege to operate a motor vehicle. AR 22-24.

Fung challenged this decision. On February 2, 2023, a second hearing was held before a Hearing Officer Herrera regarding the suspension of Fung’s driving privileges. AR 3-5. At the February 2, 2023 hearing, Fung reconfirmed her mailing address. AR 97-98.

Hearing Officer Herrera issued her decision on March 13, 2023, affirming the initial suspension of Fung’s driving privileges. AR 3-5. The Hearing Officer considered the fact that Fung again failed a reexamination on March 9, 2023. AR 5.

The March 13, 2023 decision did not notify Fung of her right to judicial review and limitations deadline. See AR 3.

On March 13, 2023, Hearing Officer Herrera issued her decision following a Lack of Knowledge/Lack of Skill interview, also referred to as a hearing. Castro Decl., ¶4.

Also on March 13, 2023, the DMV served Fung by mail with the decision. Pursuant to the DMV’s practice, the decision was mailed via regular United States mail. Castro Decl., Ex. A; AR 3-5. There is nothing in the DMV’s records that would suggest the decision was not received by Fung soon after the date of mailing. Castro Decl., ¶5.

Respondent DMV contends that the Petition is barred by the statute of limitations. Fung opposes.

“(a) Any action brought in a court of competent jurisdiction to review any order of the department refusing, canceling, placing on probation, suspending, or revoking the privilege of a person to operate a motor vehicle shall be commenced within 90 days from the date the order is noticed.”

(b) Upon final completion of all administrative appeals, the person whose driving privilege was refused, canceled, placed on probation, suspended, or revoked shall be given written notice by the department of his or her right to a review by a court pursuant to subdivision (a).”

The failure to meet section 14401’s 90-day deadline is fatal to an untimely filed petition. Sinetos v. Department of Motor Vehicles, (“Sinetos”) (1984) 160 Cal.App.3d 1172, 1175; see also Vitkievicz v. Valverde, (“Vitkievicz”) (2012) 202 Cal.App.4th 1306, 1309 (affirming sustaining of demurrer to petition as untimely under section 14401).

The DMV argues that it served Fung with Hearing Officer Herrera’s decision on March 13, 2023. Fung had 90 days from March 13, 2023—until June 11, 2023—to challenge the DMV’s decision under section 14401(a). She did not timely file her Petition, doing so only on May 21, 2024, over one year after the decision. The Petition is barred by the statute of limitations and the DMV’s motion for judgment should be granted. Mot. at 3.

Fung’s response is that the DMV did not give her notice of her right to seek judicial review and the deadline to file a mandamus petition under CCP section 1094.6. CCP section 1094.6(f) requires that “[i]n making a final decision… the local agency shall provide notice to the party that the time within which judicial review must be sought is governed by this section.” Without this notice, the statute of limitations cannot begin to run. Donnellan v. City of Novato, (2001) 86 Cal.App.4^th 1097, 1102; El Dorado Palm Springs, Ltd. v. Rent Review Commission, (1991) 230 Cal.App.3d 335, 345. Opp. at 4.

The DMV’s moving papers misleadingly cropped the March 13, 2023 decision (Mot. at 4), but the actual page shows that the Hearing Officer did not check a box that would notify Fung of her right and deadline to file mandamus in superior court. AR 3. Opp. at 4-5. Fung anticipates that the DMV may argue that the unchecked box is insignificant, but a petitioner should be entitled to rely on this failure to conclude that no time limit applies, as Fung did. Opp. at 6-7.

Fung argues that, because of this failure, the 90-day limitation period was never triggered. She adds that the DMV’s citations to Sinetos, supra, 150 Cal.App.3d at 1172, and Vitkievicz, supra, 202 Cal.App.4th at 1306, are distinguishable. Opp. at 7-8.

The Vitkievicz court upheld a trial court order sustaining a demurrer after the petitioner claimed his petition was timely under section 14401 because the time to act was extended five days for service by mail under CCP section 1013. 202 Cal.App.4^th at 1312-13. The notice of final decision stated: “You have a right to seek a court review of this action provided you do so within 94 days of the mailing date on this notice shown below.” Id. at 1310. The court held that the five-day extension in CCP section 1013 applies only if a statue establishes thetime within an act must be performed after “service of a document”. Id. at 1313. If a statute requires that an act must be performed after the mailing of a document, CCP section 1013(a) does not extend the act. Id. Section 14401 requires that the petition for judicial review be commenced within 90 days after “the date the order is noticed.” Id. Under Vehicle Code section 23, notice is complete four days after deposit of the notice in the mail. Id. at 1314. Thus, the “order is noticed” four days after mailing and the 90-day period then starts. Id. The five-day extension of CCP section 1013 does not apply. Id.

In Sinetos, supra, 160 Cal.App.3d at 1172, the court noted: “As required by statute, the [DMV’s] letter informed the plaintiff of his right to commence judicial review within 90 days from the date such order is noticed. (Veh. Code, §14401, subd. (a.)”. Id. at 1174. The court also cited Vehicle Code section 14401(b), which requires the DMV to give written notice of the right to review pursuant to subdivision (a). Id. at 1174, n.2. The court held that Vehicle Code section 14401 makes no provision for an extension of time in which to petition for judicial review, and the petition filed more than a month beyond the 90-day limitations period was untimely. Id. at 1175- 76.

The DMV correctly replies that CCP section 1094.6 has no application to this case. The DMV is a state agency and CCP section 1094.6 applies to local agencies. CCP §1094.6(a) (f). The statute of limitations for Fung’s case is set forth in Vehicle Code section 14401. Opp. at 9.

However, Vehicle Code section 14401(b) contains a similar provision to CCP section 1094.6, requiring the DMV to notify Fung of her right to seek judicial review within 90 days. The failure to provide the notice required by Vehicle Code section 14401(b) negates accrual of the 90-day period for the same reasons it does for CCP section 1094.6 petitions. That is, “since [section 1094.6] adopted a much shorter limitations period, it is crucial that the party have proper notice.” Donnellan v. City of Novato, supra, 6 Cal.App.4^th at 1105 (citation omitted). The same is true for Vehicle Code section 14401(b).

The DMV attempts to show compliance by noting that Hearing Officer Cotton’s March 13, 2022 decision did properly notify Fung of her right to seek judicial review in 94 days. AR 22-24. Reply at 4, 8.

There are three answers to this argument. First, Vehicle Code section 14401(b) requires that notice be given “[u]pon final completion of all administrative appeals”. Fung’s final appeal was decided in Hearing Officer Herrera’s March 13, 2023 decision, and that is when notice should be given. Second, the requisite notice must be given for each appeal decision; the DMV cannot bootstrap from a previous decision. Third, Hearing Officer Herrera’s failure to check the notice box misleads the reader to conclude that the 94-day period does not apply.

In sum, the DMV failed to comply with Vehicle Code section 14401(b) for the March 13, 2023 decision and the statute of limitations did not begin to run. The Petition is not untimely.[2]

[1] All of Fung’s written evidentiary objections to the Castro declaration are overruled.

[2] The DMV is correct that Fung may not rely on CCP section 1085 for the March 13, 2023 decision. Administrative mandamus is the sole basis for that review. Nor may she claim that the recent events of October 24, 2024 denial of a learner’s permit is a continuing violation because that event is not within the scope of her Petition. Reply at 11.