Judge Stephen I. Goorvitch, Case Number: 24STCP01215, Date: 2024-10-02 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01215, Date: 2024-10-02 Tentative Ruling

California Department of Department: 82 Motor Vehicles Judge: Stephen I. Goorvitch

Michael Marcus (“Petitioner”) filed this petition for writ of mandate challenging the suspension of his driver’s license by the Department of Motor Vehicles (“Respondent” or the “DMV”). The suspension was based on a finding that Petitioner’s “medical information was not favorable” and was imposed after a driver safety investigation, pursuant to Vehicle Code section 13953, determined that Petitioner is unable to operate a motor vehicle safely because of a medical condition, viz., mild cognitive impairment and dementia. (See Petition for Writ of Mandate (“Pet.”) pp. 54, 105-107 of 114.) Now, Petitioner seeks to augment the record and to compel the production of certain records in discovery. Respondent’s counsel claims that medical records on which the hearing officer relied, as well as a letter from Petitioner, are included in the administrative record, but neither party lodged a copy, and Respondent’s counsel has not included a declaration from the custodian of records. Therefore, the motion to augment is granted only in this respect. The motion to augment is otherwise denied. To the extent Petitioner seeks to introduce additional medical records, he had an opportunity to introduce his own evidence at the DMV hearing. The motion to compel discovery is also denied because Petitioner does not satisfy the standard.

“As a general rule, a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671, 702.) That is because a petition for writ of administrative mandate is akin to an appellate proceeding. However, “[w]here the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.” (Code Civ. Proc. § 1094.5(e).)

Discovery is limited in such proceedings. In order to obtain discovery, the moving party must:

[I]dentify what evidence is sought to be discovered for purposes of adding it to the record; to establish the relevancy of the evidence; and to show that either (a) any such relevant, additional evidence was improperly excluded at the administrative hearing, or (b) it could not have been produced at the hearing with the exercise of reasonable diligence. (Code Civ. Proc. § 1094.5, subd. (e).) If the moving party fails to make the required showing, it is an abuse of the court’s discretion to allow posthearing discovery.

(Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102.) These same rules apply to a motion to augment the administrative record. (See ibid.)

The petitioner also may object that the record prepared by the agency omits documents that are part of the record. (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 336, fn. 5.) The administrative record generally consists of:

[T]he transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence, and any other papers in the case.

(Code Civ. Proc. § 1094.6(c); accord Gov. Code § 11523 and Local Rule 3.231(g).)

Petitioner moves to augment the administrative record to include his “privileged medical records, which Dr. Koretz gave the DMV.” (Motion to Augment (“MTA”) 5.)[1] Petitioner represents that he has these records, indicating that he will “provide Dr. Koretz’s medical records if the DMV does not produce them.” (Ibid.)

Neither party lodged a copy of the certified administrative record, so the court cannot determine whether all of the records on which the hearing officer relied have been included. Respondent’s counsel represents that “the medical records provided by both medical professionals, Dr. Koretz and Dr. Grossman, that the determination is based upon is [sic] a part of the certified administrative record.” (Oppo. 2:14-16.) But there is no declaration from a custodian of records supporting that representation. Therefore, the motion is granted in that the court orders all medical records on which the hearing officer’s decision is based shall be included in the administrative record.

It appears that Petitioner is seeking to include additional medical records in the administrative record that the hearing officer did not consider in rendering his decision. Petitioner does not satisfy the standard to augment the record because he does not identify any of Dr. Koretz’s medical records that were “improperly excluded at the administrative hearing” or that “could not have been produced at the hearing with the exercise of reasonable diligence.” To the contrary, Petitioner clearly had (or could have had) access to his own medical records, evident by the fact that he has possession of them. The hearing officer afforded Petitioner an opportunity to present his own evidence at the hearing:

[Petitioner] declined the opportunity to have another Doctor evaluate and assess his overall cognitive impairment or to present new medical information. [Petitioner] presented information from another Doctor that conflicted with Doctor Grossman’s assessment but also declined the opportunity to have the other Doctor fill and submit another Driver Medical Evaluation.

(Pet. 60.) If there were favorable medical records, Petitioner does not explain why he did not introduce them at the hearing. Accordingly, there is no basis to include these records at this stage.

Respondent acknowledges that Petitioner’s two-page letter dated December 16, 2023, which is addressed to the DMV’s Legal Affairs Division, and marked as Exhibit A, is part of the administrative record. (Oppo. to MTA 2:11-12, 4:6-7.)[2] Again, Respondent has not lodged a certified copy of the administrative record or provided a declaration from a custodian of records confirming this document’s inclusion in the administrative record. Therefore, the motion is granted.

Petitioner moves to augment the administrative record to include the following three categories of documents:

· “[A]ll DMV writings or documents specifically discussing the conflict issue raised by Marcus as to the December 2023 and January 2024 suspension hearings;”

· “[A]ll DMV policies that discuss the procedures and actions that shall be taken and/or apply when a person or party to a DMV administrative hearing or legal proceeding objects to the involvement of any DMV person, other than as a witness, in that hearing or proceeding because of a conflict of interest;” and

· “[A]ll writings and documents that reference [Driver Safety Officer] Trinidad’s use of the term ‘interview,’ rather than ‘hearing,’ during the January 22, 2024 proceeding.”

(MTA 5 and 8-9.) As noted, to augment the administrative record pursuant to Code of Civil Procedure section 1094.5(e), the moving party must: (1) “identify what evidence is sought to be discovered for purposes of adding it to the record”; (2) “establish the relevancy of the evidence”; and (3) “show that either (a) any such relevant, additional evidence was improperly excluded at the administrative hearing, or (b) it could not have been produced at the hearing with the exercise of reasonable diligence.” (Pomona Valley, supra, 55 Cal.App.4^th at 102.)

Petitioner does not satisfy the standard. While Petitioner identifies three general categories of records, he does not establish that Respondent has possession of any specific documents responsive to those categories. Nor does Petitioner show that the unspecified documents at issue were admitted into evidence, were ruled inadmissible by a hearing officer and excluded, or were otherwise considered by or presented to Respondent’s decisionmakers during the administrative process. Thus, Petitioner does not show that the unspecified documents should be part of the administrative record. (See Code Civ. Proc. § 1094.6(c); Gov. Code § 11523; Local Rule 3.231(g).)

Finally, and perhaps most important, Petitioner does not establish the relevancy of the evidence. Petitioner seeks to add the unspecified documents to the record to support claims that he was a denied fair hearing or that other procedural errors occurred. (See MTA 5-8.) “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.) Thus, the court will adjudicate the fairness of the administrative process and Petitioner’s procedural claims based on the certified administrative record. Petitioner does not show that the unspecified documents that he seeks to add to the record have any relevance to the procedural claims raised in his petition.

Petitioner moves for an order compelling Respondent to produce five different categories of documents or information. Petitioner does not submit any evidence that he served requests for production of documents, special interrogatories, or other civil discovery on Respondent seeking the documents/information referenced in the motion. (See e.g. Code Civ. Pro. §§ 2031.010, et seq. and 1985 [statutes authorizing demands for production of documents in a civil action]; CCP § 2030.10, et seq. [interrogatories].) Petitioner has not cited any statutory authority under which a California court could compel an adverse party, in a civil action, to respond to discovery that was not served pursuant to the procedures set forth in the Civil Discovery Act and the Code of Civil Procedure.

Petitioner argues that he may conduct discovery pursuant to Government Code section 11507.6 and that he did, in fact, serve discovery pursuant to that statute in the administrative proceedings. (MTC 4-6.) Petitioner contends that Respondent “ignored all discovery requests until late January 2024 when it sent Petitioner incomplete and non-responsive documents.” (MTC 5.) Section 11507.6 governs discovery before certain administrative agencies. (See Gov. Code § 11501(b).) If the agency does not comply with a request for discovery under section 11507.6, there is a statutory procedure for a “motion to compel discovery” before the agency. (Gov. Code § 11507.7.) These statutes do not govern civil discovery before a court of law. Accordingly, Petitioner’s reliance on section 11507.6 to compel Respondent to produce discovery in this civil action is misplaced.

Because Petitioner has not served discovery on Respondent pursuant to the Civil Discovery Act, the court construes the motion to seek leave to conduct discovery pursuant to CCP section 1094.5(e). The motion is, therefore, subject to the requirements to augment the administrative record. (See Pomona Valley, supra, 55 Cal.App.4th at 102.) Applying that standard, the court finds that Petitioner has not shown grounds to conduct discovery. The court considers each of the five categories, in turn.

1. “All copies or writings of all proof or evidence that the Department of Motor Vehicles relied upon in making the finding or decision that Michael D. Marcus’s driving privileges in California are or shall be suspended” – DENIED

This first category is essentially a demand for Respondent to produce the administrative record. Petitioner does not need discovery to compel Respondent to produce the administrative record. (See Code Civ. Proc. § 1094.6(c) and Gov. Code § 11523 [specifying deadlines for the respondent to produce the administrative record].) Accordingly, the motion to compel discovery for this category is denied.

2. “The names of all Department of Motor Vehicles persons who were involved or participated in making the decision that Michael D. Marcus’s driving privileges in California shall be or are suspended” – DENIED

The administrative record should include the names of all DMV employees who served as hearing officers and witnesses, if any, in Petitioner’s appeal of the decision to suspend his driving privileges. The court has no reason to believe that it does not. Furthermore, this second category appears barred by the mental process principle because Petitioner effectively seeks to inquire into the mental processes and reasoning by which Respondent made its decision to suspend Petitioner’s license. (See Labor & Workforce Development Agency v. Sup.Ct. (2018) 19 Cal.App.5th 12, 30-31 [disclosure of identities of third-parties involved in confidential, predecisional communications with agency was functional equivalent of revealing substance or director of agency’s judgment and mental processes].) Accordingly, the motion to compel discovery for this category is denied.

3. “All authority, including statutes (federal and state), administrative provisions, regulations and Department internal rules and provisions which provided or gave the California Department of Motor Vehicles the authority to suspend Michael D. Marcus's driving privileges in November 2023” – DENIED

This category seeks to discover Respondent’s contentions regarding pure questions of law, i.e. the statute, regulation, or other authority that supports its decision to suspend Petitioner’s license. “In suits seeking review of administrative action, discovery is not available regarding pure issues of law.” (Contractors’ State License Bd. v. Sup.Ct. (2018) 23 Cal.App.5th 125, 134; accord Transcentury Properties, Inc. v. State of California (1974) 41 Cal.App.3d 835, 842.) Furthermore, this category seeks to discover the mental processes of the DMV decisionmakers who determined that Petitioner’s driver’s license should be suspended. Discovery for that purpose is strictly prohibited. Under the mental processes principle, “a party is not entitled to be privy to the mental processes or reasoning by which administrative officials arrive at their decision.” (Guilbert v. Regents of University of California (1979) 93 Cal.App.3d 233, 242; accord U.S. v. Morgan (1974) 313 U.S. 409, 422 [“Just as a judge cannot be subjected to such a scrutiny, ... so the integrity of the administrative process must be equally respected.”] and State of California v. Sup. Ct. (Veta Company) (1974) 12 Cal.3d 237, 258 [same].) Accordingly, the motion to compel discovery for this category is denied.

4. “All writings regarding the decisions to assign Department of Motor Vehicles’ employees C. Rubio and Jose Trinidad as Hearing Officers in Petitioner’s respective December 19, 2023 and January 22, 2024 hearings” – DENIED

This fourth category is also barred by the mental process principle because Petitioner effectively seeks to inquire into the mental processes and reasoning by which Respondent made its decision to suspend Petitioner’s license. Further, to the extent the unspecified writings exist and are not already included in the administrative record, they are irrelevant. Accordingly, the motion to compel discovery for this category is denied.

5. “All authority, including statutes (federal and state), administrative provisions, regulations and Department internal rules and provisions upon which the DMV relied and or applied regarding the admissibility of evidence in the December 19, 2023 DMV hearing involving Petitioner” – DENIED

In this category, Petitioner seeks to conduct discovery regarding a purely legal question, which is not permissible in an administrative writ proceeding. This category is also barred by the mental process principle because Petitioner effectively seeks to inquire into the mental processes and reasoning by which Respondent made its decision to suspend Petitioner’s license. Finally, to the extent the unspecified writings exist and are not already included in the administrative record, they are irrelevant. Accordingly, the motion to compel discovery for this category is denied.

1. Petitioner’s motion to augment the administrative record is granted in part and denied in part. Respondent shall include all medical records on which the hearing officer relied in rendering his decision, as well as Petitioner’s letter of December 16, 2023, in the administrative record. The motion is otherwise denied.

4. The opening brief shall be filed and served electronically 75 days in advance of trial; the opposition brief shall be filed and served electronically 30 days in advance of trial; and the reply brief shall be filed and served electronically 15 days in advance of trial. Petitioner shall lodge the administrative record on a thumb drive at least 15 days in advance of trial.

[1] However, the petition for writ of mandate includes, as exhibits, some parts of the administrative record. In his motion, Petitioner also summarizes the contents of the record prepared by Respondent. (MTA 2-4.) Respondent has not disputed the accuracy of that summary. Therefore, the court will decide the motion on this basis.

[2] The opposition refers to a two-page letter dated “September 16, 2023,” marked as Exhibit A, but that date appears to be a typographical error.