Wall v. Shiomoto





















Filed 6/7/13 Wall v. Shiomoto CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

PHILIP WALL, Plaintiff and Appellant, v. JEAN SHIOMOTO, as Chief Deputy Director, etc., Defendant and Respondent.

G047428 (Super. Ct. No. 30-2012-00570477) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Franz E. Miller, Judge. Affirmed.

Christian Jensen; Chad
Firetag for Plaintiff and Appellant.

Kamala D. Harris,
Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Michael E.
Whitaker and Michael J. Hui Deputy Attoneys General, for Defendant and
Respondent.

* * *

After
providing Phillip Wall an administrative
hearing, the Department of Motor Vehicles (DMV) suspended his driver’s
license subsequent to his arrest for violating Vehicle Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 23152. Wall pled guilty to the
new offense and admitted he suffered a prior conviction for violating section
23152. The court ordered Wall to
complete a driving-under-the-influence alcohol program and when the DMV
received notification of Wall’s enrollment, it set aside the suspension and
issued Wall a restricted driver’s license.
The DMV subsequently suspended Wall’s license again when it received
notice Wall did not successfully complete the program. (§ 13352, subd. (e).) Section 14101 provides that a driver is not
entitled to a hearing when the DMV is required to suspend the driver’s license,
as the DMV was in this case.

Wall contends the DMV’s
suspension of his license violated due
process because he was not provided a hearing to determine whether his
termination from the alcohol program was arbitrary or capricious. We conclude that even if a driver is entitled
to a hearing to demonstrate termination from the program was arbitrary or
capricious, Wall’s petition did not allege facts tending to indicate his
termination from the alcohol program was arbitrary or capricious.
Consequently, we affirm the superior court’s order denying relief on
Wall’s petition for a writ of mandate.

I

FACTS

On July 6, 2011, Wall was arrested for driving under
the influence of alcohol. (§ 23152,
subd. (a).) The DMV suspended Wall’s
driver’s license after an administrative hearing, pursuant to section
13352. Wall pled guilty to driving under
the influence in Orange County Superior Court case No. 11WM10159 on November 3, 2011, and admitted he
suffered a prior conviction for a violation of section 23152 on March 16, 2007. The court placed Wall on probation for a
period of five years. Among the
conditions imposed on the grant of probation, Wall was ordered to attend and
complete an 18-month program for drivers with multiple driving under the
influence convictions. Wall enrolled in
the court-ordered program, installed an ignition interlock device on his
vehicle, and obtained proof of insurance for the vehicle.

It appears the DMV
reinstated Wall’s driving privilege on November
29, 2011, and he was issued a restricted driver’s license based on
his enrollment in the court-ordered program.
However, on February 10, 2012,
the alcohol program Wall had been attending sent the DMV notice of Wall’s
noncompliance with the program. The
notice states “The person identified has failed to comply with the rules and
regulations of this DUI treatment program.”
According to Wall, he missed two classes and when he showed up late for
another class, he was asked to leave.
The DMV suspended Wall’s driver’s license on February 21, 2012 through August 28, 2013, due to Wall’s failure to comply
with the terms of the driving under the influence alcohol program.

Wall subsequently
appeared in court on case No. 11WM10159 and was ordered reinstated into the
alcohol program. He then filed a
petition for a writ of mandate seeking to have the DMV set aside its suspension
of his license and to reinstate his restricted driver’s license. The superior court denied relief, stating
that when a license is suspended because a multiple offender is terminated from
the court-ordered program for noncompliance, due process would at most entitle
the individual to a hearing to determine whether the termination from the
program was fraudulent or completely capricious. The court found Wall admitted he missed two
classes, was tardy for a third, and did not claim these violations were
insufficient to terminate him from the alcohol program. Wall appeals from the denial of his petition
for a writ of mandate.

II

DISCUSSION

Wall
filed a petition for a writ of mandate in the Orange County Superior Court,
contending the DMV’s suspension of his license, after it received notification
he had been terminated from the court-ordered program, denied him due process
in that he was not provided a hearing by the DMV before or after the
suspension. According to Wall, he was
entitled to a hearing to determine whether the suspension was warranted or
whether it was the result of an arbitrary or capricious decision of a traffic
clerk. In his superior court writ
petition, Wall alleged he spoke to the director of the alcohol program who said
“she could have intervened and prevented the eventual suspension.”

A
petition for a writ of mandate under section 1085 of the Code of Civil
Procedure “may be issued by any court to any inferior tribunal, corporation,
board, or person, to compel the performance of an act which the law specially
enjoins, as a duty resulting from an office, trust, or station, or to compel
the admission of a party to the use and enjoyment of a right or office to which
the party is entitled, and from which the party is unlawfully precluded by that
inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).) Mandamus may generally only be used to compel
performance of a purely ministerial duty.
(Alejo v. Torlakson (2013) 212
Cal.App.4th 768, 780.) “‘Generally, a
writ will lie when there is no plain, speedy, and adequate alternative remedy;
the respondent has a duty to perform; and the petitioner has a clear and
beneficial right to performance.’
[Citation.]” (>Pomona Police Officers’ Assn. v. City of
Pomona (1997) 58 Cal.App.4th 578, 584.)
We determine de novo whether the agency had a ministerial duty to act in
accordance with a statute. (>Anthony v. Snyder (2004) 116 Cal.App.4th
643, 659.)

In
today’s society, driving is a fundamental property interest of licensed drivers
(Peretto v. Department of Motor Vehicles
(1991) 235 Cal.App.3d 449, 459) and the state cannot suspend a driver’s license
without due process of law. (Cinquegrani
v. Department of Motor Vehicles (2008) 163 Cal.App.4th 741, 750.) In fact, in certain situations the Vehicle
Code expressly provides for an administrative hearing prior to a license suspension
going into effect. (See e.g., §§ 13353,
subds. (a), (e) [administrative hearing provided when ground for suspension is
driver’s refusal to take a chemical test]; 13353.2, subds. (a), (c)
[administrative hearing provided when suspension based on amount of alcohol in
system at time of driving]; 14100, subd. (a) [“Whenever the department has
given notice, or has taken or proposes to take action under Section 12804.15,
13353, 13353.2, 13950, 13951, 13952, or 13953, the person receiving the notice
or subject to the action may, within 10 days, demand a hearing which shall be
granted, except as provided in Section 14101”].) The Legislature saw fit not to provide a
driver with an administrative hearing when the license suspension is based on
the driver having suffered two driving under the influence convictions within
10 years—a condition that ordinarily requires suspension of the driver’s
license (§ 13352, subd. (a)(3))—, a restricted driver’s license was issued on
proof the individual enrolled in a court-ordered driving-under-the-influence
program, and the DMV received notice that the individual did not successfully
complete the alcohol program. (§ 13352,
subd. (e).)

“Under
section 14101, subdivision (a), a driver is not entitled to a hearing if the
DMV’s action ‘is made mandatory by this code.’”
(Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1524.)href="#_ftn2" name="_ftnref2" title="">[2] A suspension imposed pursuant to section
13352, subdivision (e) [failure to complete a court-ordered
driving-under-the-influence alcohol program], is mandatory “upon receipt of
notification from the driving-under-the-influence program that the person has
failed to comply with the program’s requirements.” (§ 13352, subd. (e).)

A
pre-suspension hearing is not required “where the threat to public safety is sufficiently
obvious to justify immediate termination.
[Citation.]” (>Pollack v. Department of Motor Vehicles (1985)
38 Cal.3d 367, 380.) That threat is
evident in the present case. Wall was
convicted of violating section 23152 in 2007.
He violated that section again in 2011.
That alone was enough to suspend Wall’s license. (§ 13352, subd. (a)(3).)href="#_ftn3" name="_ftnref3" title="">[3] Yet, Wall was provided a second chance when
the DMV issued him a restricted license based on his enrollment in a
driving-under-the-influence program after his second conviction for violating
section 23152. Wall’s repeated violation
of section 23152 demonstrated he posed a danger to the public, and his
termination from the alcohol program reinforced the idea that Wall continued to
pose a danger to the public.

Still,
due process may require a hearing
even when the applicable statute does not.
(See Horn v. County of Ventura
(1979) 24 Cal.3d 605, 616 [due process requirements rooted in the constitution,
not in statute].) Even under section
14101 a driver whose license is suspended pursuant to a statute making
suspension mandatory is entitled to “a prompt hearing before a representative
of the DMV if he believes his suspension is based on inaccurate DMV
records.” (Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at p. 380, fn. omitted.)

Wall
argues he should have been provided an administrative
hearing. He put forth a hypothetical
situation to demonstrate why due process should require a hearing when a license
is suspended pursuant to section 13352, subdivision (e): “suppose a DUI program had two ‘John Smiths’
in its class. Smith #1 was not in
compliance, but Smith #2 was. Suppose
further that the DUI clerk accidentally and mistakenly sends the non-compliance
notice to the DMV for Smith #2 instead of Smith #1.” This example fits the conclusion in >Pollack that section 14101 does not
preclude a hearing when “DMV’s records are inaccurate or if there is a mistake
as to identity.” (Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at p. 380, fn. 8.)
Section 14101 would not preclude a hearing in that instance because the
DMV is not required to suspend a license based on an inaccurate record. (Ibid.) Thus, under Pollack, a driver is entitled to an administrative hearing
concerning the suspension of his driver’s license under section 13352,
subdivision (e) if there is evidence indicating the DMV’s records are
inaccurate or a case of mistaken identity.
(Ibid.)

In
determining what process is due, the court considers and balances “three
distinct factors: (1) the private
interest affected by the official action; (2) the risk of an erroneous
deprivation of that interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and (3) the
government’s interest, including the function involved and the financial and
administrative burdens which would be entailed by additional safeguards. [Citations.]”
(Peretto v. Department of Motor
Vehicles, supra, 235 Cal.App.3d
at p. 460.) We have already noted the
driving privilege is fundamental. (>Cinquegrani v. Department of Motor Vehicles,
supra, 163 Cal.App.4th at p.
750.) The risk of an erroneous
deprivation without an administrative hearing is minimal when the license has
been suspended in conformance with section 13352, subdivision (e), and there is
no showing of a mistake of identity or that the DMV’s records are
inaccurate. In such a case, the driver
will have already been established to have been a second time violator of
section 23152, a danger to society, and someone who failed to comply with terms
of the probation that qualified him to have a restricted license. Requiring administrative hearings on all
suspensions made pursuant to section 13352, subdivision (e) would entail undue
financial and administrative burdens in reviewing the paperwork sent by alcohol
programs to the DMV each time a second time violator is terminated from the
program. After all, the mere fact that
the driver has suffered two convictions within the statutory period made the
driver eligible for suspension of his license, but for enrollment in the
driving-under-the-influence program. (§
13352, subd. (a)(3).) On the other hand,
when it appears the DMV’s paperwork is inaccurate or there is an issue of
mistaken identity, the potential for an erroneous decision is increased and,
since such cases are presumably rare, providing administrative hearings in
these limited situations does not impose any significant administrative burden or
cost on the state.

Wall’s
petition for a writ of mandate was not supported by admissible evidence
demonstrating his termination from the program was arbitrary and capricious or
that paperwork reflecting his termination was sent to the DMV in error. Although he had purportedly been asked to
leave the alcohol class when he arrived for class five minutes late, he had
already missed two other classes. The
program director’s hearsay statement to Wall that she was unaware of the facts
surrounding the noncompliance notice and that had she known about the incident
before the notice was sent to the DMV she could have prevented the suspension,
was not only inadmissible (Evid. Code, § 1200), it did not support an inference
that there was anything improper about Wall’s termination from the
program. Needless to say, Wall did not
attempt to argue his case involved mistaken identity, either.

Because
Wall did not allege any facts which, if true, would mean the DMV was not
required to suspend his license under section 13352, subdivision (e), due
process did not require the DMV to provide Wall an administrative hearing in
connection with the suspension of his license.
Accordingly, we affirm the superior court’s judgment denying relief.

III

The
judgment is affirmed. The DMV shall
recover its costs on appeal.







MOORE,
J.



WE CONCUR:







O’LEARY, P.
J.







RYLAARSDAM,
J.