Judge Mitchell L. Beckloff, Case Number: 21AVCP00054, Date: 2023-07-12 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21AVCP00054, Date: 2023-07-12 Tentative Ruling

Petitioner, Bill Lee Dennis, seeks an order setting aside the findings of Respondent, the Department of Motor Vehicles (DMV) that Petitioner “refused a chemical test during a traffic stop, on December 4, 2020.” (Pet. 1.) Petitioner alleges:[1]

“The police report clearly states that I attempted to perform all DUI test[s] requested by the officer. I was unable to complete these tests due to the fact that I experienced a severe medical reaction to recently prescribed post traumatic stress disorder medication and a glass of alcohol, which caused me to pass out and hit a parked car. The injuries suffered in the accident and the medical reaction from the medication left me incoherent and semi-conscious until the next morning. . . . I am requesting the court please rule that I did not refuse the DUI test, but was unable to complete them due to my injuries. . . .” (Pet. 2.)

On November 2, 2022, the court ordered a briefing schedule and set the matter for trial. Petitioner attended the hearing on that date. Respondent thereafter gave notice of the court’s orders on November 10, 2022. Respondent’s proof of service reflects Petitioner’s address of record.

Pursuant to the court’s November 2, 2022 orders, Petitioner was required to serve and file his opening brief on or about May 15, 2023.

To this date, Petitioner has not served and filed an opening brief. Respondent nonetheless filed an opposition brief on June 12, 2023. Respondent served its opposition brief on Petitioner at his address of record on June 13, 2023. Respondent’s opposition brief notes Petitioner failed to file and serve an opening brief as required by the court’s November 2, 2022 order. (Opposition 2:18-20.)

By failing to file an opening brief, Petitioner has waived any claims alleged in the petition. Petitioner bears the burden of proof in these proceedings and the failure to file an opening brief means Petitioner has not met his burden. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233. [“[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”])

More specifically, Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) In fact, when a petitioner challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [context of appeal].) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742 [context of appeal].)

Evidence Code section 664 also creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) Given the presumption and Petitioner’s burden in mandamus, it follows that Petitioner has not met his burden—that is, he has not overcome the presumption of regularity contained in Evidence Code section 664—where he files no opening brief demonstrating error. (See Fukuda v. City of Angels, supra, 20 Cal. 4th at 817; see also Los Angeles County Court Rules, Rule 3.231, subd. (i)(2).)

Moreover, California Rules of Court, Rule 3.1103 provides writ petitions are considered law and motion matters. (Cal. Rules of Court, Rule 3.1103, subd. (a)(2).) A memorandum must be filed in support of a law and motion matter. (Cal. Rules of Court, Rule 3.112, subd. (a)(3).) A party filing a motion “must serve and file a supporting memorandum.” (Cal. Rules of Court, Rule 3.113, subd. (a).) The memorandum must set forth “a statement of facts, a concise statement of the law, evidence and arguments relief on, and a discussion of statutes, cases, and textbooks cited in support of the position advanced.” (Id. at subd. (b).) The failure to file a memorandum may be construed by the court as an admission the motion “is not meritorious and cause for its denial.” (Id. at subd. (a).)

The court also notes the weight of the evidence supports the DMV’s decision. At the administrative hearing, Petitioner testified did not “remember anything about the incident or any interactions with the officers.” (Opposition AR 40, 41. [“I don’t remember any interaction with the officer, and it was the scariest night of my life.”]) Petitioner also admitted he had alcohol the night of his accident. (Opposition AR 40.) Petitioner did not present any evidence (other than his own testimony) at the agency hearing.

“an open 1.75L glass bottle of ‘1800 Silver Tequila’ . . . resting in plain view on the front passenger floor board. [He] could also see a 25 fluid ounce can of ‘Hurricane’ (brand of alcohol) and a 24 fluid ounce can of ‘Steel Reserve’ (brand of alcohol) in plain view on the rear passenger floor board behind the passenger seat.” (Opposition AR 22.)

“Utilizing the body worn camera, I video recorded myself reading the suspect the Chemical Test Admonishment per the Admin Per Se DS 367. The suspect refused to provide a breath or blood sample for the purpose of determining his BAC. The suspect was very argumentative/uncooperative and these behavioral characteristics [were] present during the entire investigation.” (Opposition AR 26.)

Based on the foregoing, as Petitioner has not demonstrated agency error, the petition is denied.

[1] Petitioner’s verification is defective. (Pet. 6.) It does not reflect it is sworn under penalty of perjury or its place of execution. (Code Civ. Proc., § 2015.5) In addition, documents attached to the petition are not authenticated.