Judge Mitchell L. Beckloff, Case 22STCP01241 2022-08-26 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01241, Date: 2022-08-26 Tentative Ruling

Petitioner, William Pulaski, seeks an order compelling Respondent, Steve Gordon, Director of the Department of Motor Vehicles (DMV), to vacate the DMV’s decision suspending Petitioner’s commercial driving privilege for one year. The DMV suspended Petitioner’s driver’s license after it found Petitioner failed to prove financial responsibility pursuant to Vehicle Code section 16070 at the time of a motor vehicle accident that occurred on September 26, 2021.

The California Financial Responsibility Law (Veh. Code, § 16000 et seq.) requires drivers of motor vehicles to be self-insured, to have insurance, or to be otherwise financially responsible for damages caused by accidents. A driver involved in an accident causing damages over $1,000, death, or bodily injury must report such accident to the DMV on an approved report form. (Id., § 16000.) The law requires the involved driver to show proof of financial responsibility at the time of the accident to the satisfaction of the department. (Id., § 16050.)

Vehicle Code section 16070 requires the DMV to suspend the driving privilege of a driver involved in an accident described in Vehicle Code section 16000 who fails to provide evidence of financial responsibility, as required by Vehicle Code section 16020, at the time of the accident. (Id., § 16070, subd. (a).)

On September 26, 2021, Petitioner was the driver of a vehicle involved in an accident with another driver, Valeria Femat, who claimed she sustained bodily injury during the accident. (AR 9.) Petitioner did not provide any valid proof of insurance. (AR 5, 9, 34; see also Opposition 7:25-27 [explaining typographical error].)

The DMV hearing officer conducted a financial responsibility hearing on February 15, 2022. (AR 13-65.) An attorney, Jason Miller, represented Petitioner at the hearing. Petitioner now questions Miller’s effectiveness in this proceeding. (AR 13-36.)

The DMV limited the scope of the hearing to three issues: (1) whether Petitioner was the driver or owner of a motor vehicle involved in an accident on September 26, 2021; (2) whether there was property damage in excess of $1,000 or bodily injury or death as a result of the accident; and (3) whether Petitioner had an acceptable type of financial responsibility in effect for the vehicle involved in that accident. (AR 15.)

The hearing officer received exhibits into evidence and heard testimony from Femat. (AR 13-65.) Petitioner also spoke during the hearing to the hearing officer, but in a brief, informal manner and not under oath. (AR 29-30.)

Femat testified she: (1) was involved in a three-vehicle accident; (2) injured her neck, back and knee; (3) exchanged insurance information with other drivers[2] at the accident scene; (4) reported the accident to her insurance company; and (5) received certain medical treatment related to her injuries. (AR 17-26.)

On March 4, 2022, the hearing officer issued her notice of findings and decision – financial Responsibility (Decision), sustaining the DMV suspension for one year pursuant to Vehicle Code sections 14105, 16070 and 16072. (AR 5-8.) The Decision found: (1) Petitioner’s vehicle was involved in an accident as described in Vehicle Code section 16000; (2) there was bodily injury resulting from the accident; and (3) Petitioner did not have an acceptable form of insurance at the time of the accident. (AR 6.)

Petitioner seeks relief through his petition pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

There are two possible forms of review: (1) independent judgment; or (2) substantial evidence. (Id., subd. (c).) Code of Civil Procedure section 1094.5 does not 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 (Fukuda).) 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.) In all other cases, the court determines whether the findings are supported by substantial evidence in light of the whole record. (See Code Civ. Proc., § 1094.5, subd. (c).)

Petitioner contends that court should apply its independent judgment in reviewing the underlying administrative decision. The court agrees. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396; Espinoza v. Shimoto (2017) 10 Cal.App.5th 85, 99.)

Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda, supra, 20 Cal.4th at 819.)

Under the independent judgment standard, the court decides whether the weight of the evidence supports the administrative findings (rather than whether substantial evidence supports the findings). Thus, a trial court “‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Id. at 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)

Petitioner argues that he was denied a fair hearing because of the structure of the DMV hearing combining the role of prosecutor and decision maker and the ineffectiveness of his retained counsel.

As noted earlier, Code of Civil Procedure section 1094.5, subdivision (b) expressly provides a writ of administrative mandate may issue where an agency decided a matter without a “fair trial.” (Code Civ. Proc. § 1094.5, subd. (b).) “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’ ” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062; see also Horn v. County of Ventura (1979) 24 Cal.3d 605, 617. [“The general application of due process principles is flexible, depending on the nature of the competing interests involved.”])

Petitioner argues he was denied a fair hearing because the DMV violated his procedural due process rights. He contends an administrative hearing that combines the role of the agency’s prosecutor and decision maker in the same person. He contends the entire framework used by DMV to suspend his license is unconstitutional. More specifically, Petitioner argues California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (CDLA) applies here and requires the Decision be set aside on fair trial grounds.

In CDLA, this District’s Court of Appeal held that the DMV's administrative per se hearing structure violates the California and federal due process rights of drivers by combining the roles of advocate and adjudicator in a single person. (Id. at 532-533.) While CDLA did not involve a petition for writ of mandate, the Court’s opinion is applicable here because “combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California Constitution Article I, section 7.” (Id. at 532.)

The DMV argues CDLA is inapplicable here. The DMV argues CDLA involved an administrative per se (APS) hearing with issues unlike those in a financial responsibility hearing.

CDLA did address APS hearings used to suspend a driver's license following an arrest for driving under the influence of drugs or alcohol. (Id. at 525.) In an APS hearing, the DMV hearing officer has to decide only whether (1) the arresting officer had reasonable cause to believe the person was driving, (2) the driver was arrested, and (3) the person was driving with a blood alcohol concentration of 0.08 percent or higher. (Ibid.)

In a financial responsibility hearing, the DMV hearing officer has to decide whether (1) the person was the driver or owner of a motor vehicle involved in an accident, (2) there was property damage in excess of $1,000 or bodily injury or death as a result of the accident, and (3) the person had an acceptable type of financial responsibility in effect for the vehicle involved in that accident. (Veh. Code, § 16070; see also AR 15.)

Without question, in an APS hearing the DMV hearing officer is often required to consider and weigh evidence that might be complex, scientific or conflicting. For example, whether an arrested driver refused to submit to chemical testing might require a hearing officer to resolve conflicting facts elicited in testimony between a law enforcement officer and a driver.

Nonetheless, the financial responsibility hearing requires fact finding—it is, after all, a hearing to determine and find facts. The DMV hearing officer in a financial responsibility hearing makes factual determinations—whether there was property damage or bodily injury, for example.

The court finds the DMV’s characterization of the nature of the financial responsibility hearing as a series of binary choices unpersuasive. From the court’s perspective, whether in the context of an APS hearing or a financial responsibility hearing, the DMV hearing officer is eliciting testimony, ruling on evidentiary objections and making the decision. The court acknowledges the hearings require different findings and have different names. Nonetheless, both are hearings and both may result—based on the facts found—on the suspension of a driver’s license.

The DMV also argues even assuming CDLA’s analysis can be applied in the context of a financial responsibility hearing, Petitioner cannot prevail here for three reasons. First, the DMV contends Petitioner has not demonstrated any improper bias by the hearing officer. Second, the DMV asserts CDLA cannot be applied here because such application would be retroactive. Finally, the DMV argues Petitioner waived the claim by failing to exhaust his administrative remedies. The court addresses each argument in turn.

The DMV claims despite any structural flaw of a constitutional magnitude in any DMV hearing where the advocate and adjudicator are the same person, the hearing conducted here evidences no bias by the hearing officer. (Opposition 16:20-18:10.) The lack of bias, according to the DMV, undermines Petitioner’s fair trial claim. The court disagrees.

CDLA quoted Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 86 to support its constitutional analysis: “We conclude that the issue is not whether there was actual bias, but whether the hearing met minimum constitutional standards of due process.” Accordingly, given the DMV’s hearing process and minimum constitutional standards of due process, actual bias need not be shown—“[t]hat [Petitioner] may not have demonstrated actual bias is not dispositive.” (CDLA, supra, 77 Cal.App.5th at 532.) The hearing framework itself—without regard to bias—is unfair and does not pass constitutional muster.

The DMV argues CDLA’s holding should not apply retroactively. CDLA, according to the DMV, should not apply to any hearings conducted prior to the date the Court of Appeal filed its opinion, April 15, 2022. (Opposition 18:11-19:15.) The court disagrees.

CDLA is not new law—it is an interpretation of existing law (procedural due process) in the context of DMV APS hearings. “ ‘A time-honored rule of jurisprudence is that legal decisions operate retroactively while new statutes operate prospectively. [Citations.]’ ” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4hh 824, 831; see also Vazquez v. Jan-Pro Franchising International, Inc. (2021) 10 Cal.5th 944, 952 [“well-established general principle”].) Nothing suggests the constitutionally infirm process used by the DMV to suspend a driver’s license should override that licensee’s constitutional rights. Moreover, as discussed below, nothing precludes the DMV from conducting a financial responsibility hearing for Petitioner in a constitutionally permissive manner.

Finally, the DMV argues Petitioner waived any due process challenge by failing to exhaust his administrative remedies. Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489; see also NBS Imaging Systems, Inc. v. State Bd. of Control (Polaroid Corp.) (1997) 60 Cal.App.4th 328, 337. [“The superior court erred in granting relief based on a legal theory never presented during the administrative proceedings.”]) Here, it is undisputed that Petitioner did not raise any due process challenge in the underlying proceeding. But Petitioner contends that it would have been improper for Petitioner to raise this issue at the administrative stage prematurely:

The Attorney General says that because Jason Miller didn't raise the issue during the DMV hearing before and should have had the forethought that this issue would be coming down the pike, we can't raise it now. First of all, the California DUI Lawyers Association decision came out on April 15, 2022. This hearing was held two months prior, on February 15, 2022. DMV attorneys actually worth their salt would not raise an issue that the law does not yet recognize – indeed, this is in and of itself runs afoul of professional responsibility rules and regulations. The failure to raise an issue not yet ripe is something the Attorney General deems inexcusable. That is frankly preposterous. (Reply 5:14-22.)

While “[a]n issue not raised in an administrative hearing, including a claim of bias may not be raised in later judicial proceedings[,]” there are exceptions. (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 [Underground Contractors].) Here, the constitutional claim is based on undisputed facts—the structure of the hearing itself. There is also no available remedy to exhaust. (See Glendale City Employees’ Ass’n v. City of Glendale (1975) 15 Cal.3d 328, 342.) Unlike bias, as in Underground Contractors, where the hearing officer could consider the objection and a new hearing officer could be substituted to hear the matter (the remedy), there is no remedy available for an unconstitutional process that “violates the minimum constitutional standards of due process.” (CDLA, supra, 77 Cal.App.5th at 532.) The hearing officer in the context of a DMV proceeding can provide no remedy because any order issued is made in the context of that constitutionally infirm proceeding. (See Coachella Valley Mosquito & Vector Control Dist. v. California Pub. Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080 [futility].)

The court finds the DMV’s financial responsibility hearing process is structurally flawed and violates procedural due process. Accordingly, Petitioner must be granted relief.[3]

Petitioner also argues the DMV denied him a fair hearing because his counsel was ineffective. The claim is unpersuasive.

A claim of ineffective assistance of counsel is an argument grounded in the Sixth Amendment which is expressly limited to criminal (not administrative) proceedings. Petitioner identifies no legal support suggesting the concept applies in civil or administrative proceedings. (Borror v. Dep't of Investment (1971) 15 Cal.App.3d 531, 539-540. [“With particular reference to a proceeding to revoke or suspend a license or other administrative action of a disciplinary nature, it has been held in this state that such proceeding is not a criminal or quasi-criminal prosecution.”])

Accordingly, Petitioner is not entitled to relief on his ineffective assistance of counsel claim.

Based on the foregoing, the petition is granted. The Decision is set aside. Nothing herein is intended to “limit or control in any way the discretion legally vested in” the DMV. (Code Civ. Proc. § 1094.5, subd. (f).) The court notes where the court sets aside an agency’s decision on fair trial grounds, the agency is not precluded from conducting further administrative proceedings. (Cf. Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1435. [“In other words, the DMV is to reinstate Carlton’s probationary status pending further proceedings as the DMV may choose to initiate.”])

[1] The DMV disputes the accuracy of the administrative record (AR) filed by Petitioner. The court cites and relies upon the administrative record as filed by the DMV, unless otherwise specified.

[2] Petitioner argues Femat’s testimony demonstrates Petitioner exchanged insurance information with Fermat. The DMV correctly notes, however, Petitioner has admitted he had no insurance at the time of the accident, and there is no other evidence in the record Petitioner was insured as required by law. (Opposition 7:27-28.) In any event, Petitioner’s Opening Brief focuses on whether Femat suffered a bodily injury. (See Opening Brief 15:21-22. [“There was one issue and one issue only that could have won Pulaski’s hearing: WHETHER OR NOT THERE WAS BODILY INJURY.”]; but see id. 19:10-15 [arguing the additional issue of whether Petitioner had insurance].)

[3] The court does not assume any error was harmless here where the hearing officer had to find Femat credible. (See Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1471.) Further, Code of Civil Procedure section 1094.5, subdivision’s “prejudicial abuse of discretion” as a ground for setting aside an agency’s decision is distinct from the ground “whether there was a fair trial.”