Judge Stephen I. Goorvitch, Case Number: 24STCP01966, Date: 2024-07-26 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01966, Date: 2024-07-26 Tentative Ruling

Case Number: 24STCP01966 Hearing Date: July 26, 2024 Dept: 82

Andrew E. Flemmings v. California Department of Motor Vehicles

Case No. 24STCP01966

[Tentative] Order Denying Ex Parte Application for Stay

Petitioner Andrew E. Flemmings (“Petitioner”) filed this ex parte application against the Department of Motor Vehicles (the “DMV”) following the suspension of his license. Now, Petitioner seeks a stay of the suspension of his driver’s license under Code of Civil Procedure section 1094.5(g).

Under Code of Civil Procedure section 1094.5, the court “may stay the operation of the administrative order or decision pending the judgment of the court….” (Code Civ. Proc. § 1094.5(g).) “However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest.” (Ibid.) The administrative stay provision of Section 1094.5(g) “requires the superior court to weigh the public interest in each individual case.” (Sterling v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187.)

The court denies this application for two independent reasons. This is Petitioner’s third ex parte application to stay the suspension of his driver’s license. Petitioner filed the first application on June 21, 2024, and the court (Chalfant, J.) denied the application on June 28, 2024. Judge Chalfant stated:

Petitioner has failed to file a declaration of ex parte notice. See California Rules of Court 3.1203 and 3.1204. Petitioner has not shown evidence of a reasonable prospect of success, irreparable harm, or that it would not be against the public interest to grant the stay.

(See Court’s Minute Order, dated June 28, 2024.) Petitioner filed the second application on June 28, 2024, and the court (Chalfant, J.) denied the application on July 5, 2024. The order states only that “[t]he court having fully considered the arguments, both written and oral, as well as the evidence presented, now rules as follows: The Ex Parte Application for stay of suspension filed by Andrew E. Flemmings on 6/28/2024 is Denied.” (See Court’s Minute Order, dated July 5, 2024.) Now, Petitioner has filed a third ex parte application for a suspension of the stay of his driver’s license. This issue has already been resolved by Judge Chalfant, and there is no good cause for a third ex parte application.

The court recognizes that Petitioner filed the first two applications as a self-represented party, and the instant application was filed by an attorney. Even if that constitutes good cause, the court denies the instant application on the merits because Petitioner does not demonstrate that a stay would not be against the public interest. To the contrary, the court has genuine concerns that Petitioner poses a danger to public safety given the unusual facts of this case. A deputy from the Los Angeles County Sheriff’s Department discovered Petitioner asleep behind the wheel of his vehicle. The deputy “observed the motor vehicle running, keys in the ignition, and the car rolling forward as [Petitioner] awakened.” There was an open bottle of tequila on the passenger seat. According to the report, the deputy “could immediately smell the odor of alcohol and marijuana emitting from the suspect.” Petitioner admitted that he had two shots from the bottle and drove the vehicle afterwards. These facts—in particular the open bottle of alcohol in the vehicle and the odor of marijuana—are aggravating factors that distinguish this case from others in which the court has granted such ex parte applications.

Petitioner’s counsel argues that “Petitioner had no alcohol in his system when arrested.” This argument is misleading. The alcohol test was performed approximately three hours after the deputy first encountered Petitioner, which afforded time for any alcohol to leave his system. In fact, it appears that Petitioner was under the influence of alcohol and drugs when he fell asleep behind the wheel of his vehicle. Petitioner smelled of alcohol and marijuana, and the deputy observed that he had “bloodshot/watery eyes.” Petitioner failed the standardized field sobriety tests. Accordingly, the record suggests that Petitioner had alcohol in his system when he operated his vehicle. Moreover, the record suggests that Petitioner was under the influence of marijuana, too.

Based upon the foregoing, Petitioner’s ex parte application is denied. Petitioner’s counsel shall provide notice and file proof of service with the court.