Judge Stephen I. Goorvitch, Case Number: 23STCP03504, Date: 2024-04-24 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP03504, Date: 2024-04-24 Tentative Ruling

Cesar Magdaleno Jr. (“Petitioner”) petitions for a writ of administrative mandate directing the Department of Motor Vehicles (“Respondent” or the “DMV”) to set aside its decision suspending Petitioner’s driving privilege for one year. Petitioner argues that the DMV did not afford him due process, as required by California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517. The DMV did not comply with the clear holding of this case, so the court grants this petition and remands this matter for a new hearing before the DMV.

On July 12, 2022, at approximately 11:55 p.m., Officer J. Diaz of the California Highway Patrol stopped Petitioner for driving 70 miles per hour, in a 65-mile-per-hour zone, and for driving in the carpool lane while being the only occupant in the vehicle. (AR 8, 10.) Officer Diaz observed that Petitioner exhibited signs and symptoms of alcohol intoxication. (AR 10.) Officer Diaz administered field sobriety tests, which Petitioner failed. According to Officer Diaz, Petitioner refused a preliminary alcohol screening test. (AR 8, 10.)

Officer Diaz arrested Petitioner at approximately 12:14 a.m. on July 13, 2023, after concluding there was reasonable cause to believe Petitioner was driving while under the influence of alcohol. (AR 8.) At approximately 1:11 a.m., Officer Diaz read Petitioner the chemical test admonition required by Vehicle Code section 23612. (AR 9.) When Officer Diaz asked whether Petitioner would take a breath test, Petitioner responded “Nope.” (AR 9.) When Officer Diaz asked whether Petitioner would take a blood test, Petitioner “started talking about [the] form saying he could have family interpret [the] form ….” (AR 9.) Petitioner’s blood was drawn at 2:46 am on July 13, 2022. (AR 8.) The blood test indicated a blood alcohol content of .087 +/- .004. (AR 29; see Opening Brief (“OB”) 3.)

Officer Diaz issued a DMV Form DS367 to Petitioner. In the sections of the form titled “Violation,” Officer Diaz checked the box stating “0.08% or more BAC Chemical Test Results.” Officer Diaz did not check the box stating that the Vehicle Code violation was a “Chemical Test Refusal.” (AR 8-13.)

On or about July 24, 2023, Petitioner filed a petition to seal arrest and related records pursuant to Penal Code section 851.91. This section states: “A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed . . . .” (Pen. Code § 851.91(a).) Petitioner indicated in the petition that the arrest did not result in a conviction. (AR 19.) On August 17, 2023, the court (Judge Susan J. Townsend) granted the petition and ordered that “the record of arrest in this matter shall be sealed under the provisions of section 851.91, and the arrest deemed not to have occurred.” (AR 16-17.)

The DMV initiated administrative proceedings against Petitioner. After several continuances, an administrative hearing concerning the suspension of Petitioner’s driving privilege commenced on August 30, 2023, before DMV Hearing Officer Curtis Cheung (the “Hearing Officer”). (AR 57-59.) Petitioner was represented at the hearing by attorney Donald Hammond. (Ibid.) The DMV was not represented by counsel at the hearing. Petitioner objected to the “single Hearing Officer format pursuant to California DUI Lawyers Association v. DMV.” (AR 60.) Petitioner’s counsel also objected that DMV had not provided notice on Form DS367, or otherwise, that the license suspension was based on a chemical test refusal. (AR 61-62.) The Hearing Officer asked Petitioner’s counsel whether his client would waive notice, and he refused to waive notice. (AR 64, 66.) Over objection of Petitioner’s counsel, the Hearing Officer continued the hearing to provide notice to Petitioner that he was alleged to have committed a chemical test refusal. (AR 62-70.)

The DMV hearing resumed on October 3, 2023. Petitioner appeared at the hearing and testified that he still had not received any notice from DMV that his suspension was based on a chemical test refusal. (AR 101-102.) Subsequently, after Petitioner’s counsel’s direct examination, the Hearing Officer cross-examined Petitioner and asked, “Did anyone make you aware that this hearing was for a refusal, a chemical test refusal?” Petitioner responded, “only my lawyer.” The Hearing Officer overruled Petitioner’s counsel objection based on the attorney-client privilege. (AR 102-103.)

On October 5, 2023, the Hearing Officer issued his decision suspending Petitioner’s driver’s license for one-year. (AR 5.) Based on a review of the evidence, the Hearing Officer determined that the peace officer had reasonable cause to believe that Petitioner was driving under the influence, Petitioner was lawfully arrested, Petitioner was properly admonished, and Petitioner refused to complete chemical testing after being requested to do so. (Ibid.)

On September 21, 2023, Petitioner filed his petition for writ of mandate, and on October 24, 2023, Petitioner filed his first amended petition. On October 19, 2023, the court (Judge Mitchell Beckloff) granted Petitioner’s ex parte application for a stay of the administrative order. On February 23, 2024, Petitioner filed his opening brief in support of the petition and lodged the administrative record. On March 25, 2024, Respondent filed its opposition. On April 9, 2024, Petitioner filed his reply.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues 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 agency 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(b).)

When a driver petitions for a writ of mandate following an order suspending his or her driver’s license, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal. 4th 448, 456.)

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) However, “in exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends that DMV violated his due process rights by using a “single hearing officer format” in which the Hearing Officer acted both as an advocate for DMV and as the trier of fact. (OB 8-10.) In California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (“CDLA”), the Court of Appeal held that “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 532-533.) Summarizing prior appellate decisions, the CDLA Court reasoned as follows:

Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a “particular combination of circumstances creating an unacceptable risk of bias.”

(Id. at 532.) Accordingly, in remanding the case to the trial court, the Court of Appeal instructed that the modified judgment shall state that “the DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.” (Id. at 538.) On remand, the trial court issued the permanent injunction as ordered by the Court of Appeal. (Request for Judicia Notice, Exh. A.)

As noted by Respondent in opposition, the CDLA Court suggested that the DMV could allow its hearing officers to perform multiple functions, as long as the hearing officers refrained from advocating on behalf of the DMV. (Oppo. 9, citing CDLA, supra, 77 Cal.App.5th at 533, fn. 5 [“CDLA concedes the DMV may task the same person with both collecting and developing the evidence and rendering a final decision…. He or she must refrain, however, from advocating on behalf of the DMV ….”].) Respondent argues that, based on the circumstances of this case, the Hearing Officer’s “combination of collecting and developing the evidence and rendering a final decision” did not cross the line into advocacy on behalf of the DMV. (Oppo. 10-11; see also Id. 17-18.)

On April 4, 2024, the Fifth District Court of Appeal issued its decision in Knudsen v. Department of Motor Vehicles (2024) __ Cal.App.5th __, 2024 WL 1453228, which held that a DMV hearing officer impermissibly acted as an adjudicator and advocate in a DMV administrative hearing, and that this lack of impartiality was a structural error that entitled the driver to a new administrative hearing. The Knudsen Court analyzed CDLA at length and set forth the following test for analyzing a driver’s due process challenge to a DMV hearing:

[T]o resolve such a challenge, it is first necessary to determine whether a particular driver’s due process right to an impartial adjudicator was violated. Consistent with DUI Lawyers, that determination is made by assessing the administrative record and the revocation decision to see if the public hearing officer actually acted as both an adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence. If the relevant documents demonstrate that the public hearing officer did not act as an advocate, then the driver’s due process right to an impartial adjudicator was not violated, and the constitutional issue is resolved. If the relevant documents demonstrate that a public hearing officer actually acted as an advocate, then the driver’s due process right to an impartial adjudicator is violated. In the latter circumstance, because we conclude that a violation of the due process right to an impartial adjudicator is a structural error, then the driver is entitled to a new APS hearing before a constitutionally impartial adjudicator.

Petitioner argues that the Hearing Officer acted as both the trier of fact and advocate, which was a structural error that deprived Petitioner his right to an impartial adjudicator. (OB 9-10.) Specifically, Petitioner contends that the Hearing Officer acted as an advocate for DMV when he: (1) moved for and granted his own continuance—over Petitioner’s objection—to cure DMV’s failure to provide Petitioner proper notice of the hearing issues; (2) asked Petitioner questions about the notice he received, including a question that invaded the attorney-client privilege; and (3) decided which of the DMV documents should be used as evidence. (OB 8-9; Reply 2-4.)[1]

The central question is whether the Hearing Officer was simply “collecting and developing the evidence” and acting as a trier of fact, or whether he was also advocating on behalf of DMV. (See CDLA, supra, 77 Cal.App.5th at 533, fn. 5; see also Knudsen, supra, at *9-*14.) In this case, the Hearing Officer acted as an advocate for DMV when he proposed and granted his own continuance of the hearing in order to cure a defect in notice that would have prevented DMV from pursuing the case against Petitioner. DMV Form DS367 issued to Petitioner on July 13, 2022, did not give Petitioner any notice that the license suspension was based on a chemical test refusal. (AR 8-13.)[2] At the hearing on August 30, 2023, the Hearing Officer informed Petitioner’s counsel that the case would be pursued as a chemical test refusal. (AR 61.) Petitioner’s counsel then objected that DMV had not provided notice on Form DS367, or otherwise, that the license suspension was based on a chemical test refusal. (AR 61-62.) After reviewing the DMV’s records, the Hearing Officer acknowledged that there was “no indication” that Petitioner had been given notice that the case would be treated as a refusal. (AR 64.) Immediately thereafter, the Hearing Officer stated that he would “pull up my scheduling system” in order to continue the hearing so that Petitioner could be given notice. (AR 64-65.) Before initiating a continuance, the Hearing Officer did not show any neutral consideration of whether there was good cause. (See Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468 [continuances are “disfavored” and may be granted “only on an affirmative showing of good cause.”].) For instance, the Hearing Officer did not first solicit argument or input from Petitioner’s counsel about whether a continuance should be granted. Further, after Petitioner objected, the Hearing Officer noted that Petitioner had been granted multiple continuances and stated “all things being fair, we should do so as well.” (AR 65-66 [bold italics added].) This record makes clear the Hearing Officer was acting as an advocate for DMV when he proposed and granted the continuance.

In opposition, Respondent does not squarely address Petitioner’s argument that proposing and granting the continuance–in order to cure a notice issue that would have barred DMV’s case–demonstrated that the Hearing Officer was acting as an advocate for DMV. (Oppo. 9-10; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) In discussing Petitioner’s request for fees, Respondent states that the Hearing Officer “thought a continuance would assist in Petitioner’s representation as a neutral fact finder.” (Oppo. 17:25-27.) This argument is disingenuous. Petitioner’s counsel objected to the continuance. Clearly, the purpose of the continuance was to cure the defect in notice to assist the DMV, not to assist in Petitioner’s representation. (See AR 64-65.)

The Hearing Officer also acted as an advocate for DMV when he cross-examined Petitioner and developed the (privileged) communications based upon which he found that Petitioner received proper notice of the refusal allegation. During the hearing, Petitioner’s counsel conducted a direct examination focusing on the lack of notice that the hearing related to an alleged refusal to submit to a chemical test:

Counsel: Mr. Magdaleno, within the last month, have you received any documents from [the DMV]?

Counsel: And you gave us your address earlier. That’s an address where you regularly check your mail; is that right?

Petitioner: I would say about two weeks ago. I am here now, and I don’t have any mail from the DMV.

Counsel: Okay. So you’re looking through mail now, and you can confirm that you haven’t received anything; is that accurate?

(AR 101-102.) Then, the Hearing Officer cross-examined Petitioner. The Hearing Officer asked, “Did anyone make you aware that this hearing was for a refusal, a chemical test refusal?” (AR 103.)

There were several problems with this question. First, this was not a “clarifying question,” as argued by Respondent’s counsel, because the question did not seek information to elucidate Petitioner’s answers whether he received any documents from the DMV. Instead, the Hearing Officer asked a question to develop a record that Petitioner received notice of the refusal allegation. Second, and more troubling, the Hearing Officer’s question did not exclude attorney-client communications, and before Petitioner’s counsel could object, Petitioner responded, “only my lawyer.” (Ibid.) Then, Petitioner’s counsel objected based upon attorney-client privilege, and the Hearing Officer (incorrectly) overruled Petitioner’s counsel objection. (AR 102-103.) The question—which elicited privileged communications—was important to DMV’s case, and Petitioner’s answer was the basis for finding that Petitioner received prior notice. Indeed, the administrative decision shows that the Hearing Officer found proper notice of the chemical test refusal issue based on “verbal service.” (AR 4-5.) This constitutes advocacy on behalf of the DMV.

Finally, Petitioner argues that the Hearing Officer acted as an advocate for DMV when he decided which of the DMV documents should be used as evidence. (See OB 9:16-19.) Petitioner’s counsel made a “blanket objection” to the DMV’s use of arrest and related records that had been sealed. (AR 85.) The Hearing Officer’s decision to exclude records based on the sealing order does not necessarily show advocacy on the part of DMV. (AR 88-89.) On the other hand, the Hearing Officer’s admission of Form DS367, over Petitioner’s objection, arguably shows some advocacy on the part of DMV. In any event, because the court finds that the DMV was not impartial in other respects, the court need not decide the extent to which his admission or exclusion of evidence may also show advocacy on the part of DMV.

In sum, the Hearing Officer acted as an advocate for the DMV when he proposed and granted a continuance that was necessary to cure DMV’s failure to provide adequate notice, without first hearing argument from Petitioner’s counsel and considering whether there was good cause. The Hearing Officer also acted as an advocate for DMV when he cross-examined Petitioner, invaded the attorney-client privilege, overruled Petitioner’s counsel’s (valid) objection, and relied on privileged information in adjudicating the case against Petitioner. The DMV’s failure to provide an impartial adjudicator was structural error that denied Petitioner due process of law. (See Knudsen, supra, at *9-*14; see also Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212 [“whenever ‘due process requires a hearing, the adjudicator must be impartial”].) Because of the structural error, Petitioner is not required to make a specific showing of prejudice. The decision must be set aside and the matter remanded for a new hearing consistent with due process. The court need not address Petitioner’s remaining arguments.[3]

Petitioner requests attorneys’ fees under Government Code section 800 and Code of Civil Procedure section 1095. Petitioner must file a separate noticed motion that outlines the statutory basis for attorneys’ fees, the application to this case, the total amount of attorneys’ fees sought, and the basis for those fees, e.g., the billing rate, specific tasks performed, and number of hours.

2. The court shall issue a writ directing Respondent to set aside the decision of October 5, 2023, suspending Petitioner’s driver’s license, per Code of Civil Procedure section 1094.5(f).

3. The matter is remanded to the DMV. Should the DMV elect to hold a new administrative hearing, it shall do so in a manner not inconsistent with California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517 and Knudsen v. Department of Motor Vehicles (2024) __ Cal.App.5th __, 2024 WL 1453228. (Code Civ. Proc. § 1094.5(f).)

5. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] Petitioner also argues, for the first time in reply, that the Hearing Officer acted as an advocate for DMV when he purportedly “[c]hang[ed] the hearing issues from a .08% hearing to a refusal hearing.” (Reply 2.) Petitioner does not show good cause to raise this argument in reply. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Accordingly, the court does not consider it.

[2] Respondent argues that Form DS367 gave Petitioner notice of the chemical test refusal issue because it stated that Petitioner had refused the preliminary alcohol screening (“PAS”) tests. (Oppo. 8.) That argument lacks merits. As shown on the DS367 form, the PAS tests were “optional.” (AR 8.) Petitioner’s refusal of the PAS tests does not prove that a chemical test refusal occurred under the implied consent law.

[3] In particular, the scope of the sealing order pursuant to Penal Code sections 851.91 and 851.92, and the admissibility of form DS367, are evidentiary issues that must be decided by an impartial DMV hearing officer in the first instance. (See OB 10-11; Oppo. 12-13; Reply 4-5.)