Judge Mitchell L. Beckloff, Case Number: 21STCP02815, Date: 2023-08-16 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02815, Date: 2023-08-16 Tentative Ruling

Petitioner, Pooyan Nasibi, moves for an award of attorney’s fees pursuant to Government Code section 800 (Section 800) against Respondent, Steve Gordon, Director of the Department of Motor Vehicles.

On August 27, 2021, Petitioner filed his petition for writ of mandate challenging the suspension of his driver’s license.

After briefing and argument, the court issued an interlocutory order remanding the matter to Respondent for compliance with Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d. 506 (Topanga). The court’s November 2, 2022 order (Remand Order) discusses the relevant facts as well as the court’s rationale. That discussion is not repeated here but is incorporated by reference.

On remand, according to Petitioner, “Respondent apparently saw the writing on the wall and reinstated Petitioner’s license without any concessions on his part.” (Motion 4:20-21.) Respondent complied with the court’s Remand Order without conducting a hearing. A reexamination report issued by Respondent on December 14, 2022 (through a different hearing officer) found the evidence presented at the original reexamination hearing demonstrated a reasonable inference Petitioner did not “pose an immediate risk to traffic safety.” (AR 73.)

On January 11, 2023, pursuant an oral request made by Petitioner and Respondent, the court dismissed the petition as moot.

Section 800 “permits a litigant who successfully challenges the determination of an administrative agency to recover attorney fees if the litigant demonstrates that the agency acted in an arbitrary or capricious manner.” (Zuehlsdorf v. Simi Valley Unified School Dist. (2007) 148 Cal.App.4th 249, 255.) “The statute sets out four conditions for the recovery of attorney fees: 1) a civil action to review a determination of an administrative proceeding; 2) the complainant prevailed against a public entity or official; 3) arbitrary or capricious action or conduct by a public entity or official; and 4) the complainant is personally obligated to pay the fees.” (Ibid.)[1]

An administrative hearing is generally required to trigger the fee provisions of Section 800. (Gustafson v. Zolin (1997) 57 Cal.App.4th 1361, 1366-1367; Traverso v. People ex rel. Dept. of Transportation (1996) 46 Cal.App.4th 1197, 1211 [denial of permit not “administrative proceeding” within meaning of Section 800 “because there is no hearing involved”].)

In this proceeding, Petitioner brought his petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5 seeking review of Respondent’s decision suspending his driving privilege after a reexamination hearing. (AR 6-7.) Thus, there can be no dispute Petitioner satisfied the first of four requirements for Section 800 attorney’s fees—a civil action brought to review a decision of an administrative agency.

Respondent argues Petitioner cannot, however, establish the other requirements for a Section 800 attorney’s fees award.

Section 800 does not contain a definition of “prevailing complainant.” “In the absence of legislative direction in the attorney fees statute, the courts have concluded that a rigid definition of prevailing party should not be used. [Citation.] Rather, prevailing party status should be determined by the trial court based on an evaluation of whether a party prevailed ‘on a practical level,’ and the trial court's decision should be affirmed on appeal absent an abuse of discretion.’ [Citations.] Among the factors the trial court must consider in determining whether a party prevailed is the extent to which each party has realized its litigation objectives.” (Zuehlsdorf v. Simi Valley Unified School Dist., supra, 148 Cal.App.4th at 255.)

Petitioner contends he prevailed in this proceeding within the meaning of Section 800 because he obtained an order remanding the matter to Respondent to require additional findings to facilitate review as required by Topanga. The Remand Order ultimately resulted in Respondent vacating its suspension order.

Respondent argues: “Petitioner’s motion provides no support for Petitioner’s contention that he was the prevailing party as the court dismissed the petition for writ of mandate as moot. Instead, [Respondent] is arguably the prevailing party given the trial court’s determination of mootness resulted in no affirmative relief to Petitioner.” (Opposition 9:16-19.)

There can be no question Petitioner’s litigation objective in this proceeding was reinstatement of his driving privilege. On a practical level, Petitioner prevailed; Respondent retreated from its position, and Petitioner did not lose his driver’s license pending further reexamination. That Petitioner obtained the Remand Order—to require Respondent to explain how the evidence supported Respondent’s legal reasoning for suspending Petitioner’s driver’s license—resulted in Petitioner obtaining his litigation objective. The matter became moot only because Respondent (apparently) reconsidered its position when forced to explain its prior decision to facilitate judicial review.

The court therefore finds Petitioner satisfied the second of four requirements for Section 800 attorney’s fees—Petitioner prevailed against Respondent.

“ ‘The award of attorney's fees under Government Code section 800 is allowed only if the actions of a public entity or official were wholly arbitrary or capricious. The phrase ‘arbitrary or capricious’ encompasses conduct not supported by a fair or substantial reason [citation], a stubborn insistence on following unauthorized conduct [citation], or a bad faith legal dispute.’ [Citations.] ‘Attorney's fees may not be awarded [under Section 800] simply because the administrative entity or official's action was erroneous, even if it was ‘clearly erroneous.’ [Citation.] ‘The determination of whether an action is arbitrary or capricious is essentially one of fact, within the sound discretion of the trial court [citation].’ ” (Reis v. Biggs Unified School Dist. (2005) 126 Cal.App.4th 809, 823.)

For several reasons, the court finds Petitioner has not demonstrated the third of the four requirements for Section 800 attorney’s fees—arbitrary or capricious conduct by Respondent.

Respondent argues Petitioner is not entitled to fees under Section 800 because the court did not make a finding Respondent engaged in arbitrary or capricious action or conduct in its decision on the writ petition—that is, the parties did not litigate the issue before this court. (Opposition 10:11-17.) While Petitioner raised entitlement to Section 800 attorney’s fees in his Opening Brief (Opening Brief 3:8-9, 14:19-20), Petitioner made no substantive factual argument to support his assertion of arbitrary and capricious action by Respondent. Petitioner’s Reply Brief is similar.[2] (Reply 7:5-6.)

The court finds Respondent’s argument persuasive. To support an attorney’s fee award under section 800, a claim of arbitrary or capricious conduct should be raised as a substantive issue along with the underlying merits of a claim. (See Plumbing etc. Employers Council v. Quillin (1976) 64 Cal.App.3d 215, 224.) “The factual issue of arbitrary or capricious conduct . . . [is] inextricably related to the merits and may require a searching factual inquiry by the trial court” (Id. at 222.)

Petitioner acknowledges “the entitlement to Section 800 attorney’s fees must be litigated during the merits phase of litigation, . . . .” (Reply 5:15-16.) As noted earlier, other than a generalized reference to Section 800 fees, the court did not find during the hearing on the petition Respondent acted arbitrarily or capriciously.

In its Remand Order, the court did not decide the merits of the petition[3] or make any finding Respondent acted in an arbitrary or capricious fashion when it suspended Petitioner’s driver’s license. Plumbing etc. Employers Council v. Quillin, supra, 64 Cal.App.3d 215, 224, supports Respondent’s position—a finding of arbitrary and capricious cannot be made in the first instance on a motion for attorney’s fees pursuant to Section 800. That is especially true here where the court could not determine the basis for Respondent’s decision based on the text of the decision. The court required further clarification and utilized Topanga to obtain that explanation.

Based on Plumbing etc. Employers Council v. Quillin, supra, 64 Cal.App.3d 215, 224, the court finds Petitioner’s motion should be denied.

The Hearing Officer’s Typographical Error Does Not Show Arbitrary or Capricious Action or Conduct

Even assuming Plumbing etc. Employers Council v. Quillin, supra, 64 Cal.App.3d 215, 224 does not preclude this court from making a finding Respondent acted arbitrarily and capriciously in the context of a Section 800 motion, Petitioner has not made that showing by a preponderance of the evidence.

Petitioner appears to suggest Respondent acted arbitrarily or capriciously because Respondent’s decision found there was cause to suspend Petitioner’s license pursuant to Vehicle Code section “21819.” (Motion 4:8-11; see AR 7.) As noted by Petitioner, Vehicle Code section “21819” does not exist.

However, Vehicle Code section 12819 exists, and the statute relates to license suspension decisions concerning reexamination. Specifically, Vehicle Code section 12819 states in full:

“Unless the person issued the notice of reexamination requests the reexamination pursuant to Section 12818 within five working days after the department receives the notice of reexamination transmitted pursuant to Section 21062, the department shall peremptorily suspend the driving privilege of the person until the person has completed the reexamination and the department has taken the action prescribed in subdivision (b) of Section 12818.” (Emphasis added.)

The court finds Respondent’s apparent typographical error and incorrect reference to Vehicle Code section “21819” in its suspension decision does not constitute arbitrary or capricious conduct. That Respondent transposed the first two numbers in the statute appears to be nothing more than a simple scrivener’s error. As acknowledged by Petitioner, “[a] party does not show arbitrary and capricious action merely by showing an agency made a mistake.” (Motion 7:14-15.)

Petitioner argues Respondent based its suspension “entirely on Officer Stevenson’s referral: ‘In the absence of [Petitioner’s] testimony the Department relies on the Law Enforcement referral which indicated [Petitioner] was engaged in street racing and exceeding the speed limit.’ ” (Motion 4:10-14 [citing AR 7].) Officer Stevenson signed his referral under penalty of perjury. Officer Stevenson attested “[a]t the time of the violation, the driver exhibited evidence of incapacity which reasonably led [him] to believe that [Petitioner] is not capable of operating a motor vehicle . . . .” (AR 8.)

Petitioner has not demonstrated Respondent’s actions were arbitrary and capricious as to its finding pursuant to Vehicle Code section 12819 (reflected as 21819).[4]

The Hearing Officer’s Failure to Comply with Topanga Does Not Demonstrate Arbitrary or Capricious Action

While the argument is not fully developed, Petitioner suggests Respondent’s failure to make Topanga-compliant findings demonstrates arbitrary or capricious conduct. (Motion 8:1-2. [“It is impossible to determine into which of these arbitrary and capricious categories DMV's conduct fell in this case, as it has never offered any justification for its conduct.”]) Petitioner cites no authority for the proposition. The logical extension of Petitioner’s argument is that any remand order based on Topanga subjects the agency to a finding of arbitrary and capricious action and liability for attorney’s fees under Section 800 if the other requirements of the statute are satisfied. The court finds Petitioner’s assertion unpersuasive because it is unsupported with legal authorities.

Furthermore, as noted in the Remand Order, the court could not determine from Respondent’s decision whether Respondent “weighed the evidence and reached a conclusion or merely found Petitioner did not participate in the reexamination.” (Remand Order 6.) Given the lack of findings, the court found it could not “engage in effective review.” (Remand Order 7.) Without Topanga-compliant findings, the court cannot conclude the action of suspending Petitioner’s license under the circumstances presented—after Petitioner was cited for a speed contest, Officer Stevenson submitted a sworn statement of incapacity to drive, and Petitioner invoked his Fifth Amendment privilege at the reexamination hearing—lacked any reasonable basis or was “a stubborn insistence on following unauthorized conduct.” Accordingly, the court cannot find arbitrary or capricious conduct from Respondent’s decision.[5]

Petitioner argues Respondent “did far more than simply make a mistake.” (Motion 8:3.) Petitioner contends because Respondent “submitted no further evidence . . . than he had at the time of the original hearing” and “[n]othing had changed,” the results upon remand demonstrate Respondent’s arbitrary and capricious conduct. (Motion 8:10-14.) Finally, Petitioner asserts Respondent “tacitly admits its conduct was unauthorized all along.” (Motion 8:14.)

Whether a driver presents an immediate risk of harm to the public necessarily involves the exercise of discretion. That two different hearing officers for Respondent reached different conclusions on the same evidence does not demonstrate Respondent acted arbitrarily or capriciously. The initial hearing officer conducted a complete hearing to reach a decision.[6] The hearing officer considered Officer Stevenson’s referral and description of Petitioner’s driving to reach a decision. The court cannot find on this record Respondent’s initial decision on reexamination demonstrated arbitrary and capricious conduct.

Based on the foregoing, Petitioner has not met his burden of demonstrating Respondent engaged in arbitrary or capricious action or conduct within the meaning of Section 800.

Petitioner’s counsel states in his declaration: “As of today, I have spent time in securing the stay of the suspension and drafting the writ documents in this matter. Petitioner is legally obligated to pay me for this work.” (Gould Decl. ¶ 2.) Petitioner’s counsel did not describe the amount of fees incurred. That is, the court cannot determine on this record the amount owed by Petitioner to his attorney for services rendered in this proceeding.

Respondent objects that Petitioner’s counsel’s statement is conclusory and insufficient to prove Petitioner’s legal obligation to pay any fees for purposes of Section 800. Respondent argues a declaration supporting attorney’s fees should describe the “fee arrangement” to prove the fourth element of section 800. (See Olson v. Hickman (1972) 25 Cal.App.3d 920, 924.)

Petitioner has submitted sufficient evidence to establish he incurred an obligation to pay his counsel for legal services. There is no evidence otherwise. While Respondent argues the evidence is insufficient to establish the amount of fees owed by Petitioner to his counsel, Petitioner argues he may first litigate entitlement to attorney’s fees and later file a memorandum of costs to obtain fees. Petitioner contends the amount of fees could then properly be litigated on a motion to tax costs.

While the court believes Petitioner’s suggested process is unnecessarily burdensome as both entitlement to Section 800 fees and the amount of those fees could be litigated together (based on updated evidence for services incurred with the reply papers and an estimate for oral argument), the issue of entitlement has nonetheless been tendered for decision. Petitioner has established he is required to pay his attorney for fees incurred in this matter. There is no authority suggesting Petitioner must prove the amount he owes his attorney today to demonstrate entitlement to attorney’s fees under Section 800.

[1] Section 800, subdivision (a) states in full:

“In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the Department of General Services, if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.”

[2] Petitioner did conclude: “Respondent’s actions in conducting the underlying reexamination hearing and suspending Petitioner’s driver’s license without any allegation or evidence of incapacity were arbitrary and capricious because they were in excess of jurisdiction and against the weight of the evidence.” (Reply 6:19-21.)

[3] Indeed, the court determined remand was appropriate under Topanga because it could not review Respondent’s decision.

[4] In its Remand Order, the court did not decide whether Vehicle Code section 12819 applied. (Remand Order 2, fn. 2.) Since the second part of Vehicle Code section 12819 authorizes a suspension “until the person has completed the reexamination,” there was at least some basis for Respondent to have cited and relied upon Vehicle Code section 12819 after Petitioner invoked his Fifth Amendment privilege. Without Topanga findings, the court cannot conclude Respondent’s reliance on Vehicle Code section 12819, even if erroneous, was “conduct not supported by a fair or substantial reason [citation], a stubborn insistence on following unauthorized conduct [citation], or a bad faith legal dispute.” (Reis v. Biggs Unified School Dist., supra, 126 Cal.App.4th at 823.)

[5] In light of this conclusion, the court does not reach Respondent’s contention it had substantial reason for maintaining the license suspension. Also, as noted earlier, an administrative hearing is generally required to trigger the fee provisions of Section 800. (Gustafson v. Zolin, supra, 57 Cal.App.4th at 1366-1367; Traverso v. People ex rel. Dept. of Transportation, supra, 46 Cal.App.4th at 1211 [denial of permit not “administrative proceeding” within meaning of section 800 “because there is no hearing involved”].) Thus, for purposes of a Section 800 attorney’s fees award, the focus is on whether the Respondent’s administrative hearing evidenced arbitrary and capricious conduct by imposing the suspension after the reexamination hearing, not whether Respondent engaged in arbitrary and capricious action by ordering the reexamination hearing.

[6] Many of the hearing officer’s questions of Petitioner were met with consistent and repeated objections by Petitioner’s (then) counsel. A fair reading of the transcript of the proceedings suggests the hearing officer was somewhat unable to freely obtain information from Petitioner. For example, the hearing officer inquired of Petitioner’s “driving needs” and the “places that [he needed] to drive to?” (AR 57.) After a colloquy with Petitioner’s counsel wherein Petitioner’s counsel stated, “He need to drive everywhere. There isn’t a limitation on where he wants to drive, everywhere.” (AR 57.) The hearing officer responded: “So, Mr. Nisibi?” (AR 57.) Petitioner responded, “Everywhere.” (AR 57.) The court notes the hearing officer had a very difficult time obtaining information from Petitioner during the reexamination.