This case was last updated from Los Angeles County Superior Courts on 03/24/2019 at 03:29:41 (UTC).

CALIFORNIA DUI LAWYERS ASSN ET AL VS CALIFORNIA DEPT OF MOTO

Case Summary

On 08/01/2014 CALIFORNIA DUI LAWYERS ASSN filed an Other lawsuit against CALIFORNIA DEPT OF MOTO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH R. FEFFER, EMILIE H. ELIAS and RITA MILLER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3552

  • Filing Date:

    08/01/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH R. FEFFER

EMILIE H. ELIAS

RITA MILLER

 

Party Details

Plaintiffs, Petitioners and Respondents

CALIFORNIA DUI LAWYERS ASSOCIATION

DOES 1 - 100

MANDELL STEVEN R.

Plaintiffs, Defendants, Petitioners and Respondents

DOES 1 - 100

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES

SHIOMOTO JEAN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

NEEDLE JOSHUA C.

GOLDSTEIN NEAL M. ESQ.

HOFFMAN PAUL L. ESQ.

GAROFALO ELLYN S.

Defendant and Respondent Attorneys

JACQUELINE P. HOANG

HOANG JACQUELINE P.

 

Court Documents

Unknown

10/23/2018: Unknown

Substitution of Attorney

2/19/2019: Substitution of Attorney

Minute Order

3/1/2019: Minute Order

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

12/23/2014: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Unknown

2/23/2015: Unknown

PROOF OF ELECTRONIC SERVICE

2/23/2015: PROOF OF ELECTRONIC SERVICE

Minute Order

3/10/2015: Minute Order

PLAINTIFFS' NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT CALIFORNIA DEPARTMENT OF MOTOR VEHICLES; MEMORANDUM OF POINTS

5/28/2015: PLAINTIFFS' NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT CALIFORNIA DEPARTMENT OF MOTOR VEHICLES; MEMORANDUM OF POINTS

ASSOCIATION OF COUNSEL

5/28/2015: ASSOCIATION OF COUNSEL

PLAINTIFFS' SEPARATE STATEMENT SUPPORT OF TO COMPEL IN MOTION

5/28/2015: PLAINTIFFS' SEPARATE STATEMENT SUPPORT OF TO COMPEL IN MOTION

DEFENDANT DEPARTMENT OF MOTOR VEHICLES' OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

6/26/2015: DEFENDANT DEPARTMENT OF MOTOR VEHICLES' OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

ANSWER OF DEFENDANTS DEPARTMENT OF MOTOR VEHICLES AND JEAN SHIOMOTO, DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES, TO PLAINTIFFS' COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

7/17/2015: ANSWER OF DEFENDANTS DEPARTMENT OF MOTOR VEHICLES AND JEAN SHIOMOTO, DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES, TO PLAINTIFFS' COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

NOTICE OF FIRM NAME CHANGE

10/30/2015: NOTICE OF FIRM NAME CHANGE

PROOF OF SERVICE OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT OR ETC.

12/9/2015: PROOF OF SERVICE OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT OR ETC.

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION; ETC.

2/11/2016: PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION; ETC.

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFFS' EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF DEFENDANTS

2/26/2016: DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFFS' EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF DEFENDANTS

Minute Order

3/1/2016: Minute Order

PLAINTIFFS AMENDED NOTICE OF MOTION FOR NEW TRIAL; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF JOSHUA C. NEEDLE

4/18/2016: PLAINTIFFS AMENDED NOTICE OF MOTION FOR NEW TRIAL; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF JOSHUA C. NEEDLE

107 More Documents Available

 

Docket Entries

  • 03/19/2019
  • Order (Proposed Order Granting Ex Parte Application for an Order to Consolidate Hearing Dates on Plaintiff and Defendant's Motion for Summary Judgment on May 22, 2019 or, in the Alternative to Set the First Available Date for Hearings); Filed by California Dui Lawyers Association (Plaintiff)

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  • 03/01/2019
  • at 08:30 AM in Department 56; Hearing on Ex Parte Application (name extension) (for an Order to Consolidate Hearing Dates on Plaintiff and Defendant's Motion for Summary Judgment on May 22, 2019, or, in the Alternative to Set the First Available Date for Hearings) - Held

    Read MoreRead Less
  • 03/01/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order to Consolidate H...)); Filed by Clerk

    Read MoreRead Less
  • 02/26/2019
  • at 08:30 AM in Department 56; Order to Show Cause Re: Dismissal - Held

    Read MoreRead Less
  • 02/26/2019
  • at 08:30 AM in Department 56; Status Conference - Held

    Read MoreRead Less
  • 02/26/2019
  • Minute Order ( (Order to Show Cause Re: Dismissal; Status Conference)); Filed by Clerk

    Read MoreRead Less
  • 02/19/2019
  • Substitution of Attorney; Filed by California Dui Lawyers Association (Plaintiff)

    Read MoreRead Less
  • 02/19/2019
  • Substitution of Attorney; Filed by Steven R. Mandell (Plaintiff)

    Read MoreRead Less
  • 01/04/2019
  • Brief (SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT); Filed by California Department of Motor Vehicles (Defendant); Jean Shiomoto (Defendant)

    Read MoreRead Less
  • 01/04/2019
  • Motion for Summary Judgment; Filed by California Department of Motor Vehicles (Defendant); Jean Shiomoto (Defendant)

    Read MoreRead Less
219 More Docket Entries
  • 09/22/2014
  • DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

    Read MoreRead Less
  • 08/29/2014
  • PROOF OF SERVICE SUMMONS AND COMPLAINT

    Read MoreRead Less
  • 08/29/2014
  • Proof-Service/Summons

    Read MoreRead Less
  • 08/29/2014
  • PROOF OF SERVICE SUMMONS AND COMPLAINT

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  • 08/11/2014
  • at 00:00 AM in Department 324; (Order-Complex Determination; Case Determined to be non-Complex) -

    Read MoreRead Less
  • 08/11/2014
  • Minute order entered: 2014-08-11 00:00:00; Filed by Clerk

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  • 08/01/2014
  • Complaint; Filed by California Dui Lawyers Association (Plaintiff); Steven R. Mandell (Plaintiff)

    Read MoreRead Less
  • 08/01/2014
  • COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

    Read MoreRead Less
  • 08/01/2014
  • Summons; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 08/01/2014
  • SUMMONS

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Tentative Rulings

Case Number: BC553552    Hearing Date: December 03, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CALIFORNIA DUI LAWYERS ASSOCIATION, etc., et al.,

Plaintiffs,

vs.

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, et al.,

Defendants.

CASE NO.: BC553552

[TENTATIVE] ORDER RE:

MOTIONS FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR SUMMARY ADJUDICATION

Date: December 3, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiffs California DUI Lawyers Association (“CDLA”) and Steven R. Mandell (“Mandell”)

RESPONDING PARTIES: Defendants California Department of Motor Vehicles (“DMV”) and Jean Shiomoto (“Shiomoto”)

The Court has considered the moving, opposition, and reply papers. The Court has also considered the first and second supplemental briefs provided to the Court by the parties.

BACKGROUND

Plaintiffs’ complaint arises from the alleged lack of due process afforded in connection with the DMV’s Administrative Per Se (“APS”) hearings in connection with suspensions and revocations of driver’s licenses. Plaintiffs, in part, allege that APS hearings are unconstitutional because hearing officers who conduct APS hearings act as both an advocate for the DMV and as a decision-maker. Plaintiffs also allege that a hearing officer’s initial APS decision to set aside a suspension is subject to ex parte review, criticism, and unilateral reversal without notice to or input from the licensee. Plaintiffs filed a complaint for declaratory and injunctive relief alleging causes of action for: (1) violation of 42 U.S.C. § 1983: Due Process Rights under the Fourteen Amendment to the U.S. Constitution; (2) violation of Due Process Rights Under California Constitution Article I, Section 7; and (3) illegal expenditure of funds. In part, Plaintiffs’ complaint alleges that: (1) a Hearing Officer is subordinate to, and dependent upon all levels of DMV management for his/her continued employment and career advancement (Complaint at ¶ 29); (2) the Hearing Officer’s initial APS decision to “set aside” a suspension is subject to ex parte review, criticism and unilateral reversal, by his/her office and/or regional manager as well as DMV officials in Sacramento prior to its being issued to the licensee, without notice or input from the licensee (Id. at ¶ 30); and (3) Office Managers maintain records of how many “set asides” each Hearing Officer issues, and Hearing Officers are subject to employment sanctions if DMV Management determines they “set aside” an “excessive” number of suspensions. (Id. at ¶ 31.)

The parties filed competing motions for summary judgment, or in the alternative summary adjudication; the trial court granted Defendants’ motion and denied Plaintiffs’ motion due to lack of standing. Plaintiffs then filed a motion for a new trial which was denied. Plaintiffs appealed the trial court’s ruling with respect to summary judgment. On March 2, 2018, the Court of Appeal issued a decision reversing the trial court ruling and remanding the action to the trial court for further proceedings, holding that Plaintiffs had standing. (California DUI Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247.) On remand, the parties each filed supplemental briefs in support of their respective motions.

On August 26, 2019, the Court ordered the parties to file an additional supplemental brief, and allowed opposition to any such second supplemental brief, because the Court require such briefs to rule on the competing motions for summary judgment, or in the alternative summary adjudication. The parties were ordered to: (1) state the elements of each cause of action alleged in the complaint; (2) cite to the evidence—by exhibit, page, and line number, if necessary—that supports or does not support each cause of action to allow the Court to come to a determination on whether summary judgment, or in the alternative summary adjudication, is appropriate and ascertain whether there is a triable issue of material fact with respect to any cause of action; (3) analyze the liability of Defendant Jean Shiomoto[1] in connection with the first cause of action and citations to supporting evidence of her personal involvement or lack thereof with the DMV’s APS hearings; (4) analyze the application of the qualified immunity doctrine to the first cause of action and citing to evidence in support of or opposition to application of the qualified immunity doctrine with respect to Defendant Jean Shiomoto; and (5) provide on-point California case law discussing the due process constitutionality of the DMV APS hearing procedure where a DMV hearing officer acts in a dual-role and is subject to ex parte review and contacts by DMV management. The Court found it necessary to require the parties to cite to the specific evidence that supported their respective contentions in the second supplemental brief because the separate statements presented by the parties in connection with their respective motions were clearly deficient.

Plaintiffs’ response to Defendants’ separate statement is deficient in that it does not support each response with supporting evidence as required by California Rules of Court, Rule 3.1350, and sometimes only cites to case law or statutory law. Plaintiffs do not cite evidence that supports the fact in dispute. Also, Plaintiffs cited to deposition testimonies without pointing the Court towards the exact page and line number of the relevant portions of deposition testimony in violation of California Rules of Court, Rule 3.1350(f)(2). Moreover, Defendants’ separate statement in support of their motion failed to present any facts under various issues on which Defendants request summary adjudication. Plaintiffs’ separate statement in support of their motion failed to set forth the issues or causes of action they seek summary adjudication on. Neither the separate statement of Plaintiffs nor Defendants were organized in a manner that sets forth the material facts in support of summary judgment in connection with each cause of action, or summary adjudication.

Plaintiffs’ second supplemental brief concedes that although the Court directed the parties to cite on-point authority, this case presents an issue of first impression and there is no case on record which addresses, much less holds that California Vehicle Code, Section 14112(b) of the DMV’s APS procedures as currently enforced comports or does not comport with due process. (See Plaintiff’s Second Supplemental Memorandum at 10:7-15.) Defendants’ second supplemental brief also failed to provide the Court with on-point California case law that discusses the due process constitutionality of the DMV APS hearing procedure where a DMV hearing officer acts in a dual-role and is subject to ex parte review and contacts by DMV management.

The Court will address both parties’ motions for summary judgment, or in the alternative summary adjudication, within this one ruling. Plaintiffs concede in their opposition to Defendants’ motion that the DMV cannot be sued under 42 U.S.C. Section 1983 because it is a state agency. (Opp. at 13:28.)

California’s Administrative Procedure Structure

California Government Code, Section 11425.30(a) prohibits a person from serving as a presiding officer in an adjudicative proceeding where: (1) the person has served as an investigator, prosecutor, or advocate in the proceeding of its preadjudicative stage; or (2) the person is subject to the authority, direction, or discretion of a person who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. “Subdivision (a) of Section 11425.30 of the Government Code does not apply to a proceeding for issuance, denial, revocation, or suspension of a driver’s license pursuant to this division.” (Cal. Vehicle Code § 14112(b).)

The Basis for this Action

The Court of Appeal opinion in connection with this case sufficiently sets forth the essence of Plaintiffs’ action against Defendants and the structure of the DMV’s APS system and the laws with respect to the APS system structure. (California Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1251.)

“This action involves the administrative per se or APS system used to suspend a driver’s license following an arrest for driving under the influence.” (Id.) “Under the administrative per se law, the DMV must immediately suspend the driver’s license of a person who is driving with .08 percent or more, by weight, of alcohol in his or her blood.” (Id.) “The procedure is called administrative per se because it does not impose criminal penalties, but simply suspends a person’s driver’s license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration.” (Id.) “When a driver is arrested for driving under the influence and is determined to have a prohibited blood-alcohol content (BAC), the arresting officer of the DMV serves the driver with a notice of [an] order of suspension or revocation of his or her driver’s license, advising that the suspension will become effective 30 days from the date of service.” (Id. at 1251-1252.) “The notice explains the driver’s right to an administrative hearing before the effective date of the suspension if the driver requests a hearing within 10 days of receipt of the notice.” (Id. at 1252.)

“At the hearing, [t]he sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher.” (Id.) “If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended.” (Id.) The crux of Plaintiffs’ complaint is that “[T]he APS system . . . requires the Hearing Officers to act both as an advocate for the DMV and arbiter/decision maker, creating an obvious and inherent conflict of interest and bias favoring one party over the other.” (Id.) Thus, Plaintiffs assert that “the APS hearings violate the State and Federal Due Process rights . . . of license holders by failing to provide a fair, neutral and impartial Hearing Officer.” (Id.) Another allegation contained in Plaintiffs’ complaint is that “the APS system unconstitutionally allows DMV managers, executives, and/or administrators ex parte communications with the Hearing Officers and direct control over the decision-making process.” (Id.) Plaintiffs assert that “[t]hese procedures and practices are unconstitutional on their face and as applied.” (Id.)

EVIDENTIARY OBJECTIONS

Due to the Court’s ordering the parties to provide a second supplemental brief with citations to the evidence supporting their respective arguments, the Court will rule on all evidentiary objections to the respective motions. The parties’ papers at times cross-reference an opposition or moving paper in their respective second supplemental briefs, so the Court will rule on all evidentiary objections. Only Defendants filed evidentiary objections. Plaintiffs did not file any objections whatsoever to any of Defendants’ proffered evidence.

With respect to Defendants’ evidentiary objections to Plaintiffs’ evidence in support of Plaintiffs’ motion for summary judgment, the Court SUSTAINS objection numbers 1, 3-12, 21, 27-29, 30-35, and 38; the Court OVERRULES Defendants’ evidentiary objection numbers 2, 13-20, 22-26, 36, 37, 39-41.

With respect to Defendants’ evidentiary objections to Plaintiffs’ evidence in opposition to Defendants’ motion for summary judgment, the Court SUSTAINS objection numbers 1-5 and OVERRULES objection numbers 6-10.

With respect to Defendants’ evidentiary objections to the supplemental declaration of Joshua C. Needle and exhibits thereto, the Court SUSTAINS Defendants’ objection numbers 2, 3, 7, 8, and 9; the Court OVERRULES Defendants’ evidentiary objection numbers 1, and 4-6.

DISCUSSION

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.) A plaintiff cannot “rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists.” (Code Civ. Proc. § 437c(p)(2).) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.) Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact. (Id. at 849.) With respect to a motion for summary judgment “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the causes of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c(p)(2).)

By contradicting prior discovery responses, a party cannot create a triable issue of material fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1090.) The trial court “give[s] great weight to admissions made in discovery and disregard[s] contradictory and self-serving affidavits of the party.” (Id. at 1087.) “In summary judgment or summary adjudication proceedings, [a]dmissions of material facts made in an opposing party’s pleadings are binding on that party as judicial admissions. They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her.” (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248.) “[A] pleader cannot blow hot and cold as to the facts positively stated.” (Id.) “Summary adjudication motions are procedurally identical to summary judgment motions.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) “To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the action has no merit or that there is no defense thereto.” (Id.) “A plaintiff can obtain summary adjudication of a cause of action only by proving each element of the cause of action entitling the party to judgment on that cause of action.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.)

PLAINTIFFS’ MOTION

Plaintiffs assert that the material facts in this action are not in dispute because the DMV admits that (1) APS hearings are adversarial and adjudicative; (2) the hearing officer is both an advocate for the DMV and the decision-maker; and (3) the hearing officer engages in ex parte communications with his superiors—who may review and even reverse the hearing officer’s decision—without notice to the respondent. Plaintiffs’ motion for summary judgment is made on the grounds that: (1) the APS hearing and suspension process is constitutionally defective; and (2) therefore it deprives individuals in this State of constitutionally mandated rights. Alternatively, Plaintiffs move for summary adjudication on the following issues: (1) Plaintiffs are entitled to judgment on the first cause of action, for violation of 42 U.S.C. § 1983, as it is established as a matter of law that the DMV’s APS system fails to meet minimum due process requirements; (2) Plaintiffs are entitled to judgment as a matter of law on the second cause of action, for violation of Article 1, § 7 of the California Constitution; and (3) Plaintiffs are entitled to judgment on the third cause of action because it is established as a matter of law that the DMV’s APS system constitutes and results in, the illegal expenditure and waste of public funds.

Defendants oppose Plaintiffs’ motion on the grounds that: (1) Plaintiffs’ motion is procedurally improper and so are the supporting documents and Plaintiffs’ motion should therefore be denied in its entirety; (2) Plaintiffs lack standing to bring this lawsuit; (3) Plaintiffs are not entitled to judgment as to their first cause of action because there is evidence of bias by any hearing officers, the hearing officer’s dual role as advocate for the DMV and trier of fact does not violate due process, and communications between DMV hearing officers and DMV managers do not constitute impermissible ex parte contacts; (4) state entities like DMV are not amenable to Section 1983 claims; (5) Shiomoto is immune from liability with respect to the first cause of action under the doctrine of qualified immunity; (6) Shiomoto cannot be held liable pursuant to the first cause of action because she is not personally involved with the DMV’s APS hearings; and (7) Plaintiffs cannot state a claim for illegal expenditure of funds because the hearing officer’s role does not violate due process and the DMV has a legitimate business interest in managing its employees.

Standing

The Court of Appeal has established that Plaintiffs have standing to bring this action. As such, there is no triable issue of fact with respect to the issue of standing because the Court of Appeal has determined that issue already. (California Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247.)

Due Process Principles

A substantial portion of the parties’ respective papers are dedicated to arguing what is the proper due process standard to apply for purposes of ruling on the parties’ motions. In their second supplemental brief, Plaintiffs assert that the appellate decision in this action from California Dui Lawyers provides the law applicable to Plaintiffs’ summary judgment motion. In their second supplemental brief, Defendants assert that the balancing test articulated in Matthews v. Eldridge establishes that there was no violation of due process. Thus, the Court will determine which due process standard applies to DMV APS hearings in the context at issue.

The Court finds that Plaintiffs’ argument that the appellate decision in this action provides all the law applicable to in connection with their summary judgment motion is incorrect. It is a clear point of law that “[l]anguage used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.” (Ginn v. Savage 61 Cal.2d 520, 524, fn. 2.) The Court of Appeal only decided the issue of standing. (See California Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1265.) The Court of Appeal “express[ed] no opinion on the issues that remain[ed] for determination.” (Id.) The Court explicitly stated, “we decline to consider the parties’ motions for summary judgment on appeal in the first instance.” (Id.) As such, the appellate decision in this action does not provide the Court with guidance on the due process standard with respect to the DMV’s APS hearings in the context at issue.

“Both the federal and state Constitutions compel the government to afford persons due process before depriving them of any property interest.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) Due to the “virtually identical language of the federal and state guarantees [with respect to due process], we have looked to the United States Supreme Court’s precedents for guidance in interpreting the contours of our own due process clause and have treated the state clause’s prescriptions as substantially overlapping those of the federal Constitution.” (Id.) “The essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and an opportunity to meet it.” (Id., emphasis added.) “To ensure that the opportunity is meaningful, the United States Supreme Court and this court have identified some aspects of due process as irreducible minimums.” (Id., emphasis added.) “For example, whenever due process requires a hearing, the adjudicator must be impartial.” (Id., emphasis added.) “Beyond these broad outlines, however, the precise dictates of due process are flexible and vary according to context.” (Id.) Due process “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” (Matthews v. Eldridge (1976) 424 U.S. 319, 334.) “Due process is flexible and calls for such procedural protections as the particular situation demands.” (Id., emphasis added.) “The incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.” (Winthrow v. Larkin (1975) 421 U.S. 35, 52.) “Without a showing to the contrary, state administrators are assumed to be men [and women] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.” (Id. at 55.)

“A driver’s license cannot be suspended without due process of law.” (Hall v. Superior Court (2016) 3 Cal.App.5th 792, 796.) “Due process guarantees apply to the APS system with respect to drivers’ license suspensions.” (Id.) Whether or not the DMV’s APS system comports with due process is a question of law. (Id. at 808.) Where “an administrative agency conducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal.” (Id. at 808.) “A fair tribunal is one in which the . . . decision maker is free of bias for or against a party.” (Id. at 809.) “[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value if any, of additional or substitute procedural safeguards; and finally, the Government’s interest , including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Matthews v. Eldridge (1976) 424 U.S. 319, 334.)

The Court finds that Defendants’ reliance on Matthews for the articulation of the due process standard to apply in this action is not persuasive. The issue in Matthews was “whether the Due Process Clause of the Fifth Amendment required that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.” (Id. at 323.) Thus, Matthews only addressed the question of “what process [was] due prior to the initial termination of benefits, pending review” and whether an evidentiary hearing was required as a precursor to that termination of disability benefits. (Id. at 333.) Plaintiffs are not alleging that only the process prior to the revocation hearing is per se unconstitutional but are also alleging that the DMV hearing officers being conflicted and biased due to their status as an advocate for the DMV and their role as a decision maker is also a violation of due process; moreover, Plaintiffs assert that the hearing officer’s decision is subject to review and reversal by his or her manager without notice to the licensee. While Matthews did set forth some general principles on whether due process was required in a specific context—in that case it was in the context of an initial termination of disability benefits—it did not address a similar factual scenario that is at issue in this action. As such, Matthews does not serve as a guide or set forth the relevant due process standard that should be applied in this action. (See Ginn v. Savage 61 Cal.2d 520, 524, fn. 2.)

Defendants’ reliance on Ziehlke v. Valerde for the requisite due process test in this case is also unpersuasive. (Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525.) In Ziehlke, appellant argued that the “Admin Per Se hearing process fail[ed] due process in order to equate as a conviction because the hearing officer [was] not required to be qualified for the job and the burden of proof [was] only by the preponderance of the evidence.” (Id. at 1529.) The Ziehlke court’s holding was that “because the DMV administrative hearing is not for the purpose of imposing criminal sanctions, relaxed standards of due process apply” and that “[p]roof beyond a reasonable doubt is not required, and we presume that the person conducting the hearing has the education, experience, knowledge, and abilities required by California State Personnel Board specifications to be a DMV hearing officer.” (Id.) In analyzing and articulating the same balancing test that the Matthews court had set forth, the Ziehlke court indicated that the standard of proof beyond a reasonable doubt was not required “in administrative per se proceedings regarding suspension of the driver’s license of a person arrested for driving with a prohibited blood alcohol content.” (Id. at 1533.) Thus, the question in Ziehlke was not the same question or issue that exists in the instant action. Plaintiffs here are not making a due process challenge based on the standard of proof required at an APS hearing.

Similarly, Defendants’ reliance on Poland is also not an indicator of the proper due process standard to apply in this action and Poland is not at all applicable to the analysis of the parties’ motions under Ginn. (Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128.) In Poland, appellant argued that in connection with the DMV’s APS hearing: “(1) the hearing officer cannot fairly or properly adjudicate the case because he or she is an employee of the [DMV] and a proponent of evidence; (2) in most cases, hearing officers are not sufficiently trained and/or well-versed in the applicable law so as to fully comprehend and properly rule on the objection(s) made; (3) although similar arguments have been rejected by published authorities, those decisions are distinguished because they involved fundamentally fair procedures, while this case does not; and (4) the hearing officer here failed to weigh and consider the issues, paid no attention to appellant’s arguments and evidence, and overruled his objections out of hand.” (Id. at 1134.) The Poland court held that no violation of due process appeared based on appellant’s blanket challenge to the license revocation procedure. (Id. at 1134-1135.) Additionally, the Poland court indicated that appellant argued that the procedures employed with respect to his APS hearing lacked fundamental fairness but “ultimately rested on characterizations of the hearing officer’s mental processes.” (Id. at 1135.) Thus, the Poland court indicated that appellant’s argument “lack[ed] record support, and are irreconcilable with the presumption of correctness that cloaks the . . . hearing officer’s ruling.” (Id.) Appellant’s argument was rejected because he did not have any showing of unfairness. (Id.)

Thus, Poland does not address what is at issue in this action, as Plaintiffs are not arguing that a hearing officer being a proponent of evidence violates due process but instead allege that: (1) a Hearing Officer is subordinate to, and dependent upon all levels of DMV management for his/her continued employment and career advancement (Complaint at ¶ 29); (2) the Hearing Officer’s initial APS decision to “set aside” a suspension is subject to ex parte review, criticism and unilateral reversal, by his/her office and/or regional manager as well as DMV officials in Sacramento prior to it being issued to the licensee, without notice or input from the licensee (Id. at ¶ 30); and (3) Office Managers maintain records of how many “set asides” each Hearing Officer issues, and Hearing Officers are subject to employment sanctions if DMV Management determines they “set aside” an “excessive” number of suspensions. (Id. at ¶ 31.) Thus, Poland is irreconcilable with the instant action and more importantly did not even address the Matthews balancing test that Defendants assert is the relevant due process standard.

Defendants’ Citations to Out-of-State Legal Authority

While “[d]ecisions of the courts of other states are only regarded as persuasive” the Court finds that none of the authority cited by Defendants with respect to out-of-state authority persuades us that the three-part balancing test articulated in Matthews is the correct standard for due process to be applied in this action. (Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1077.) The Butler case from the Louisiana Supreme Court addressed the issue of whether Louisiana’s implied consent law, which authorized a suspension of a driver’s license after a motorist is arrested with a blood alcohol level of above .10g%, was constitutional. (See Butler v. Department of Public Safety and Corrections (1992) 609 So.2d 790, 791.) The Butler court indicated that Butler was alleging that “the combination of functions or roles played by the State in the drivers’ license suspension process . . . deprived him of due process of law.” (Id. at 793.) While Plaintiffs, however, are making an analogous allegation in their complaint in the hearing officer’s role is to preside over the APS hearing while also being an advocate in the respect that the hearing officer assists, prepares, defends, and/or presents the DMV’s case (Complaint at ¶¶ 25, 27), the complaint also asserts that the hearing officer’s initial APS decision to set aside a suspension is subject to ex parte review and unilateral reversal without notice or input from the licensee. (Id. at ¶ 30.)

The Court finds the Bradley case from the Missouri Court of Appeals cited by Defendants is also unpersuasive. (Bradley v. McNeill (1986) 709 S.W.2d 153.) In Bradley¸ respondent’s license was suspended for driving while intoxicated. (Id. at 154.) Respondent requested an administrative hearing and the issue at such hearing was “whether, by a preponderance of the evidence, the suspended licensee was driving while the alcohol concentration by weight in his blood or breath was thirteen-hundredths of one percent or more.” (Id.) The Bradley court stated that “[w]hat the [trial] court found unfair about the administrative hearing respondent received was that the prosecuting official and the hearing officer were one and the same person.” (Id. at 154.) The Bradley court held that where a hearing officer “introduces evidence, rules on its admissibility, and makes the ultimate adjudication” that the “formality of adding one more person to the process . . . would guarantee a petitioner’s right to due process any more than the current process.” (Id. at 155.) The Bradley court did indicate that the court “do[es] not quarrel with the principle that where one person acts as both a prosecutor and judge a possibly of unfairness exists, [but] the facts of each case must be examined when resolving a due process challenge.” (Id.) While there is some overlap between the parties’ factual posture in the instant action and Bradley, the Court finds that Bradley does not set forth a clear and defined due process standard.

Similarly, the Dumont case cited by Defendants is unavailing for purposes of this Court’s analysis of the due process issue. In part, Dumont argued in his appeal that the decision suspending his license to drive a motor vehicle were substantially prejudiced in violation of his due process rights because the hearing officer acted as judge and state advocate. (Dumont v. Commissioner of Motor Vehicles (1998) 48 Conn.App.635, 636-637.) Dumont also asserted that Connecticut’s statute with respect to driver’s licenses was unconstitutional because it was limited to four issues and denied him due process. (Id. at 642.) The Dumont court analyzed the due process challenge under Connecticut law only. Moreover, while Dumont asserted that the dual-role of the hearing officer as a judge and state advocate prejudiced his rights the court found that he “cited no authority in support of his claim.” (Id. at 644.)

The Kernan case cited by Defendants from the Supreme Court of Hawai’i also does not provide any persuasive authority for this Court in illuminating the proper due process standard. (Kernan v. Tanaka (1993) 75 Haw. 1.) One of the issues in Kernan was whether Hawaii’s Administrative Revocation Program, on its face, violated due process. (Id. at 15.) The Kernan court articulated that the “director conducting the hearing (the hearing officer) has the authority to examine witnesses and take testimony, receive the relevant evidence, issue subpoenas, regulate the hearing, and make a final ruling.” (Id. at 20.)

In Kernan, appellant argued that “the Administrative Revocation Program is constitutionally deficient because it fails to provide sufficient procedural protection to a licensed driver before and after his or her license is revoked.” (Id. at 21.) Thus, the argument of appellant in Kernan and Plaintiffs here are inconsistent as Plaintiffs allege that their due process rights are violated based on the hearing officer’s: (1) being an advocate for DMV and being commanded to assist, prepare, defend, and/or present the DMV’s case; (2) being subordinate to and dependent upon all levels of DMV management for career advancement; (3) having the initial APS decision to set aside a suspension subject to ex parte review, criticism, and unilateral reversal by his or her office or regional manager, as well as by DMV officials in Sacramento, prior to its being issued to the licensee without notice to or input from the licensee. (Complaint at ¶¶ 27-31.)

The Relevant Due Process Standard Applicable to this Action

Due to there being no clear due process standard with respect to this specific context and in light of the particular allegations and issues advanced by Plaintiffs, the Court finds that the Court of Appeal’s decision in connection with this action provides instruction on the due process standard. “Once a license issues, an administrative decision to suspend or revoke it affects a fundamental right.” (Cinquegrani v. Department of Motor Vehicles (2008) 163 Cal.App.4th 741, 750.) As stated above, “[a] driver’s license cannot be suspended without due process of law.” (California Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1259.) “The essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case and opportunity to meet it.” (Id.) “To ensure the opportunity is meaningful, the United States Supreme Court and [the California Supreme Court] have identified some aspects of due process as irreducible minimums. For example, whenever due process requires a hearing, the adjudicator must be impartial.” (Id.) “In other words, [d]ue process . . . always requires a relatively level playing field, the constitutional floor of a fair trial in a fair tribunal, [is] a fair hearing before a neutral or unbiased decision-maker.” (Id.) “Due process guarantees apply to the APS system with respect to drivers’ license suspensions.” (Id. at 1259-1260.) “In other contexts [outside of the APS hearing structure], courts have found that lack of a neutral fact finder or ex parte communications between the decision-maker and other agency employees may render an administrative hearing unfair.” (Id. at 1260.) “Procedural fairness does not mandate the dissolution of unitary agencies, but it does require some internal separation between advocates and decision makers to preserve neutrality.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board (2006) 40 Cal.4th 1, 10.) The opportunity for subsequent judicial review of an agency decision does not dispense with the requirement that due process and fair proceedings must be provided initially. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034.)

A due process issue may arise “where advocacy and decisionmaking roles are combined . . . [b]y definition, an advocate is a partisan for a particular client or point of view. The role is inconsistent with true objectivity, a constitutionally necessary characteristic of an adjudicator.” (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1585.) “A fair tribunal is one in which the judge or other decision maker is free of bias for or against a party.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 215.) “Claims that an adjudicator is biased are not subject to balancing under the federal Mathews test or state Mathews-plus test.” (Id. at 216.) “Absent a financial interest, adjudicators are presumed impartial.” (Id.) “To show nonfinancial bias sufficient to violate due process, a party must demonstrate actual bias or circumstances in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” (Id. at 219.) “Asking an administrative agency to assume multiple roles . . . is neither uncommon nor per se unconstitutional.” (Id. at 220.) “Even an agency’s participation in an accusatory portion of administrative proceedings need not give rise to constitutional concerns.” (Id. at 221.) “To prove a due process violation based on overlapping functions thus requires something more than proof that an administrative agency has investigated and accused, and will now adjudicate.” (Id.) “That party must lay a specific foundation for suspecting prejudice that would render an agency unable to consider fairly the evidence presented at the adjudicative hearing.” (Id.) The party “must come forward with specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias.” (Id.) “Otherwise, the presumption that agency adjudicators are people of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances will stand unrebutted.” (Id.) “California courts, too, recognize that the combination of prosecutorial and adjudicative functions is the most problematic combination for procedural due process purposes.” (Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 93.) “Just as in a judicial proceeding, due process in an administrative hearing also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication.” (Id. at 90.) “In fact, the broad applicability of administrative hearings to the various rights and responsibilities of citizens and businesses, and the undeniable public interest in fair hearings in the administrative adjudication arena, militate in favor of assuring that such hearings are fair.” (Id.)

Evidence of a Lack of a Neutral and Unbiased Decision-Maker

An appellate court is empowered to make factual findings. (Garden Grove Union High School Dist. of Orange County v. Meier (1962) 206 Cal.App.2d 570, 574.) In the appellate decision in this action, the Court of Appeal indicated that “DMV acknowledged in discovery that DMV is a party to an APS hearing, the hearing is adversarial, and the hearing officer’s role involves both advocating on behalf of DMV and acting as a factfinder.” (California Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1260.)

Plaintiffs present evidence that: (1) the DMV admitted that APS hearings are conducted by the DMV and did not dispute this fact in their separate statement in response to Plaintiffs’ motion (Supp. Needle Decl., Exhibit D, Exhibit 1 at RFA No. 1; Supp. Needle Decl., Exhibit B at UF No. 1; Supp. Needle Decl., Exhibit D, Exhibit 11 at 12:2-16); (2) upon arrest a driver is served with a notice of license suspension and if they want to challenge the suspension they have ten day to call the DMV to set up a hearing, and that the driver has to ask for a stay of license suspension pending the hearing or resolution of the hearing (Id., Exhibit D, Exhibit 11 at 17:18-19:17); (3) it is undisputed that the DMV is a party to an APS hearing which is an adversarial and adjudicative proceedings which are independent of any criminal charges and DMV admitted these facts during discovery (Id., Exhibit B at UF Nos. 2, 3, 4; Id., Exhibit D, Exhibit 1 at RFA Nos. 2, 3, and 5); (4) DMV admitted that the APS hearings are normally overseen by a hearing officer who is an official representative of the Driver Safety Branch (Id., Exhibit D, Exhibit 1 at RFA Nos. 1 and 6); (5) prior to the decision being made by the hearing officer and the input of data, a manager has the authority to review a hearing officer’s decision and that quality control reviews of some set-asides occur by managers (Id., Exhibit D, Exhibit 11 at 94:20-98:14); (6) it is undisputed that the DMV defines the roles of hearing officers at APS hearings as a trier of fact and as an advocate for the DMV and driver safety and that DMV admitted to this fact (Id., Exhibit B at UF No. 9; Id., Exhibit D, Exhibit 1 at RFA No. 13); (7) DMV admitted that as a trier of fact at APS hearings, a hearing officer rules on the admissibility of the documentation he or she offers evidence as advocate for the DMV in support of the DMV’s position at the hearing (Id., Exhibit D, Exhibit 1 at RFA No. 19); (8) as the trier of fact at APS hearings, the hearing officer rules on the admissibility of the documentation that is offered as evidence by Respondent in opposition to the DMV’s position at the hearing (Id., Exhibit D, Exhibit 1 at RFA No. 20); and (9) prior to the APS hearing, as an advocate for the department, the job of the hearing officer is to go through the file and make sure there is sufficient admissible evidence to support the DMV’s desire to suspend the license (Id., Exhibit E, Exhibit 3 at 26:22-27:10.)

Plaintiffs also present evidence that: (1) it is undisputed that the Driver Safety Manual (“DSM”) is produced by the Driver Safety Branch and reflects the policies and practices of the DMV (Id., Exhibit B at UF No. 6); (2) the DSM indicates that the hearing officer acts as a trier of fact in that the officer will hear, weigh, and deliberate upon evidence as well as make findings and render a decision relating to an issue of fact (Id., Exhibit D, Exhibit 2); (3) the DSM notes that a hearing officer advocates for the DMV by assisting, preparing, and/or presenting the DMV’s case and promoting traffic safety (Id.); (4) the hearing officer’s task is to ascertain whether reasonable cause existed for the arresting officer to believe the person was driving in violation of the Vehicle Code, was the driver lawfully arrested, and was the driver operating the vehicle with a BAC of .08 or higher (Id., Exhibit D, Exhibit 11 at 22:4-10); and (5) it is undisputed that the hearing officer is under no obligation to assist the Respondent in preparing or presenting their defense to the DMV’s case and it is also undisputed that the hearing officer rules on the admissibility of evidence he or she offers in support of the DMV’s case as well as on the admissibility of evidence offered by Respondent in opposition to the DMV’s case. (Id., Exhibit B at UF Nos. 13 and 14.)

The Court finds that Plaintiffs have submitted sufficient evidence to show that there is no triable issue of material fact with respect to bias and lack of neutrality on behalf of hearing officers under the language in Howitt and that the dual advocacy roles are inconsistent with true objectivity. The burden now shifts to Defendants to show that a triable issue of material fact exists.

Defendants point to evidence that: (1) DMV has a policy that hearing officers must always be fair and impartial (PUF 10); (2) the DMV has a legitimate interest to review information and data in its possession to assess the quality and quantity of the hearing officer’s work product (Defendants’ Compendium of Evidence in Support of Defendants’ MSJ, Exhibit 9 at 127:2-128:7); (3) the DMV has a legitimate interest in ensuring that suspensions are only set-aside for valid, legal reasons (Id.); (4) in 2008 a memo was circulated by the Driver Safety Officer manager in San Diego reminding hearing officers that if they were going to issue a set-aside ruling in favor of the drivers, they were required to put those files in a box or basket so that the manager could review the files to see if the set-asides were really warranted or not (Id., Exhibit 9 at 80:2-81:13; (5) there is no indication that a hearing officer was ever subjected to any disciplinary action for setting aside a suspension (Id., Exhibit 9 at 97:5-9 and 97:24-98:8); (6) there is no indication that a hearing officer has been demoted, dismissed, had a reduction in pay, or reprimanded for setting aside too many license suspensions (Id. at 148:7-149:8); (7) DMV manager Brian Dawson does not tell hearing officers what to do (Defendants’ Compendium of Evidence in Opposition to Plaintiffs’ MSJ, Exhibit 1 at 56:22-57:13); (8) managers “quality review” a hearing officer’s work product by reviewing all documentary evidence and looking at the hearing officer’s written decision to ascertain whether there was a legally sufficient case (Id. at 94:20-96:5); (9) if there were areas of improvement that can be made, then the manager would write in his or her written quality review any areas of deficiency (Id.); (10) the quality review also indicates if a hearing officer could have come to a different conclusion (Id.); (11) a hearing officer, prior to coming to a decision, will consult with a manager and get their aid and input before they make a decision if one is having difficulty coming to a decision but the manager uses that consultation as a training opportunity for the hearing officer (Id. at 116:17-117:19); and (12) the manager does not help the hearing officer reach a conclusion on a matter. (Id. at 117:10-24.) Defendants also present evidence that managers do not, even occasionally, tell hearing officers how to decide cases. (Id., Exhibit 4 at 75:5-15.) Defendants present the undisputed fact that the DMV has a legitimate business interest in reviewing the performance of its employee hearing officers, including efficiency, quality of work, and whether license suspensions are properly set aside for valid, legal reasons. (See Plaintiffs’ Response to Defendants’ Separate Statement in Support of MSJ at UF No. 7.)

Defendants have met their burden in showing that a triable issue of material fact exists with respect to bias and the lack of neutrality on the part of hearing officers. The Court finds that under Today’s Fresh Start, the evidence presented by Plaintiffs does not lay the required foundation for finding that bias or prejudice exists with respect to a hearing officer’s decision in connection with an APS hearing. Defendants’ rebuttal evidence does not allow Plaintiffs to overcome the presumption that agency adjudicators are presumed to be capable of judging a controversy fairly under the rule set forth in Today’s Fresh Start. The mere overlap of functions for which a hearing officer is responsible does not result in actual bias. (See Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197.) Even considering for the sake of argument that managers did in fact recommend how hearing officers should decide on the APS suspensions, that alone would not violate due process. (Id. at 1159.)

Ex Parte Communications and Command Influence

Plaintiffs present evidence that: (1) it is undisputed that managers may compel the hearing officers to place all of their set aside decisions in a separate box for managerial review and critique (Supp. Needle Decl., Exhibit B at UF No. 50); (2) DMV admitted in discovery that the hearing officer’s APS decision is subject to review by his or her manager without notice to Respondent or Respondent’s counsel (Id., Exhibit D, Exhibit 1 at RFA No. 22); (3) DMV admitted in discovery that the hearing officer’s APS decision is subject to alteration by his or her manager without notice to Respondent or Respondent’s counsel (Id. at RFA No. 23); (4) the hearing officer can be ordered by his or her manager to change an initial decision without a rehearing or notice to Respondent or Respondent’s counsel (Id. at RFA No. 24); (5) management tells hearing officers how to sustain findings without various documents a hearing officer believes he or she needs and they tell a hearing officer how to analyze matters to reach the result they want and that this is a regular part of the system (Supp. Needle Dec., Exhibit E, Exhibit 5 at 20:-84:22); (6) that managers have the expectation that hearing officers will obey them and that hearing officers feel pressured to agree with management because if not a hearing officer will be written up as a form of discipline (Id. at 85:12-86:23); (7) pressure is on hearing officers by management to not set aside suspensions (Id. at 86: 24-87:3); (8) managers can track the number of set asides of suspensions and can track data of that sort for individual hearing officers (Supp. Needle Decl., Exhibit D, Exhibit 11 at 71:8-25 and 73:25-7); (9) hearing officers get criticized for their set-aside numbers (Id. at 74:24-75:3); (10) where a hearing officer consults with a manager when a hearing officer is having difficulty coming to a decision, the entire consultation process might indicate management’s thought process and might influence the decision of the hearing officer. (Id. at 116:17-118:10); (11) hearing officers are pressured to not set aside suspensions (Id., Exhibit D, Exhibit 11 at 86:14-87:3); and (12) hearing officers are spoken about with respect to high set aside rates that are beyond the average (Id., Exhibit D, Exhibit 11 at 88:2-5); and (13) management tries to discourage set-asides. (Id., Exhibit D, Exhibit 11 at 89:17-90:9.)

The Court incorporates the discussion of Defendants’ evidence above in connection with the discussion of bias and neutrality and applies it here to the discussion of ex parte communications and command influence.

The Court finds that while Defendants’ evidence would ordinarily create a triable issue of material fact with respect to ex parte communications and command influence, the Court finds that Defendants’ admission in response to Plaintiffs’ Requests for Admission during discovery with respect to hearing officers, in that a manager can review a hearing officer’s APS decision, can alter a hearing officer’s APS decision, and can even order a hearing officer to change an initial decision without a rehearing or notice to Respondent or Respondent’s counsel is a clear violation of due process under Today’s Fresh Start which states that “[t]he essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and an opportunity to meet it.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) Due process is required “before depriving [a person] of any property interest.” (Id.)

Merits of the First Cause of Action

“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” (Zinermon v. Burch (1990) 494 U.S. 113, 125.) “A § 1983 action may be bought for a violation of procedural due process.” (Id.) “Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” (McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1207.) “There are two essential elements of a claim under section 1983, (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.” (Id.) “[A] state, an entity acting as an arm of the state, or a state official sued in his [or her] officer capacity may not be considered a person who may be liable under section 1983.” (Id.) “Suits against state officials in their official capacity . . . should be treated as suits against the State.” (Id.) “Thus, an official sued in his [or her] official capacity is not subject to liability under section 1983.” (Id. at 1208, emphasis added.) “[O]fficers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term person.” (Id. at 1208.) “While a plaintiff may sue a state official in his [or her] individual capacity for acts undertaken under the guise of official authority . . . we must also consider that a plaintiff may not circumvent congressional intent by a mere pleading device.” (Id.) “A rule of qualified immunity shields a public officer from an action for damages under section 1983 unless the officer has violated a clearly established constitutional right.” (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 840.) “Of course, a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.” (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71, fn. 10.)

The doctrine of qualified immunity “however, does not bar certain actions against state officers for injunctive or declaratory relief.” (Alden v. Maine (1999) 527 U.S. 706, 757.) “Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.” (Id.) “In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983.” (Jones v. Williams (2002) 297 F.3d 930, 934, emphasis added.) “A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” (Starr v. Baca (2011) 652 F.3d 1202, 1207.) “The requisite causal connection can be established . . . by setting in motion a series of acts by others . . . or knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury.” (Id. at 1207-1208.) “A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” (Id.) “[A]cquiesence or . . . indifference may suffice to show that a supervisor personally played a role in the alleged constitutional violations.” (Id. at 1208.)

Initially, the Court finds that the doctrine of qualified immunity, despite Defendants’ arguments to the contrary, does not shield Gordon or Shiomoto from Plaintiff’s first cause of action as the doctrine is inapplicable here where Plaintiffs are suing for injunctive and declaratory relief pursuant to Alden. A review of Plaintiffs’ separate statement in support of their motion for summary judgment does not indicate any material fact with respect to the personal involvement of Shiomoto in DMV APS hearings. Plaintiffs’ second supplemental brief also cites to no evidence indicating that Shiomoto has some personal involvement in the DMV APS hearings. Plaintiffs’ opposition to Defendants’ second supplemental brief also does not cite to evidence or point the Court towards any evidentiary showing with respect to Shiomoto’s personal involvement in APS hearings. A review of Plaintiffs’ responses to Defendants’ separate statement of undisputed facts shows that Plaintiffs lack evidence of Shiomoto’s personal involvement.

Plaintiffs’ response to Defendants’ UF No. 8, 9, and 11 cites as supporting evidence California Vehicle Code, Section 14104.2(a) which says that “[a]ny hearing shall be conducted by the director or by a hearing officer or hearing board appointed by him or her from officers or employees of the department.” The Court finds the citation to the statute is not sufficient evidence to show the personal involvement of Shiomoto. The only other piece of evidence Plaintiffs possess are documents stamped with Shiomoto’s name and title certifying documents for judicial review. (See Supp. Needle Decl., Exhibit D, Exhibit 4 at Ex 3; see also Plaintiff’s Responses to Defendant’s Separate Statement at UF No. 10.) As such, Plaintiffs have not met their burden in showing that a triable issue of fact with respect to the personal involvement of Shiomoto in APS hearings and thus have not shown such in connection with the first cause of action. Plaintiffs provide insufficient evidence for them to meet their burden of a triable issue with respect to the first cause of action. Plaintiffs have not established through admissible evidence that Shiomoto was responsible for the conduct alleged in the complaint as required by McAllister. Plaintiffs do not present any evidence to warrant even the inference that the documents stamped by Shiomoto are in fact served on DMV managers and officers.

Although the Court has found that Plaintiffs lack sufficient evidence to show Shiomoto’s personal involvement, the Court will briefly discuss Defendants’ evidence on this point. Defendants present the undisputed fact that Shiomoto is named in this lawsuit because she is the director of the DMV. (Defendants’ Evidence in Support of MSJ, Exhibit 10 at 58:25-59:2.) Also, Defendants present evidence that: (1) CDLA is unaware of how Shiomoto is involved in the implementation of the APS hearing structure (Id., Exhibit 9 at 167:25-168:12, 169:16-19); (2) CDLA has never seen any written communications from Shiomoto to anyone with respect to APS hearings (Id. at 168:13-168:24); and (3) Shiomoto did not sign any notice of findings an decisions upholding suspensions of driver’s licenses, was never a hearing officer on any of Mandell’s APS hearings, and she has never sent Mandell any correspondence from her office or personally signed by her related to any of the APS cases he has head with DMV. (Id., Exhibit 10 at 59:3-11, 60:5-7, 60:10-14.)

Thus, because the Court has found that Plaintiffs’ evidence is insufficient with respect to the first cause of action, and also because Plaintiffs cannot prove each element with respect to the first cause of action as required by Paramount Petroleum as Plaintiffs cannot prove that Shiomoto personally participated in the actions alleged in the complaint.

Merits of the Second Cause of Action

In their second supplemental brief, Defendants assert that Plaintiffs’ second cause of action fails for the reasons Plaintiffs’ first cause of action fails in that: (1) the APS satisfies the Matthews balancing test; (2) Plaintiffs have no evidence of ex parte communications or pecuniary bias on behalf of DMV hearing officers; and (3) the DMV has a legitimate business interest in managing its employees.

“A person may not be deprived of life, liberty, or property without due process of law.” (Cal. Const. Art.1, § 7; see also Today’s Fresh Start v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) The California Constitution’s due process scope is determined by looking to “the United States Supreme Court’s precedents for guidance in interpreting the contours of [California’s] own due process clause and have treated the state clause’s prescriptions as substantially overlapping those of the federal Constitution.” (Today’s Fresh Start v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) “[I]t is clear that the due process clause of article I, section 7(a) is self-executing, and that even without any effectuating legislation, all branches of government are required to comply with its terms.” (Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 307.) “[L]ike many other constitutional provisions, this section supports an action, bought by a private plaintiff against a proper defendant, for declaratory relief or injunction.” (Id.) “The Supreme Court itself has stated that the touchstone of due process is protection of the individual against arbitrary action of government.” (People v. Ramirez (1979) 25 Cal.3d 260, 267.) “The public has the right to expect its officers . . . to make adjudications on the basis of merit. The first step toward insuring that these expectations are realized is to require adherence to the standards of due process; absolute and uncontrolled discretion invites abuse.” (Id.) There is a due process interest “in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society.” (Id.) “For government to dispose of a person’s significant interest without offering him a chance to be heard is to risk treating him as a nonperson, an object, rather than a respected participating citizen.” (Id. at 267-268.) “[F]reedom from arbitrary adjudicative procedures is a substantive element of due process.” (Id. at 268.) “[W]hen an individual is subjected to deprivatory governmental action, he [or she] always has a due process liberty interest both in fair and unprejudiced decision making and in being treated with respect and dignity.” (Id.)

In Ramirez, the Court was reviewing the scope of the due process clauses of the California Constitution. (Id. at 263.) Appellant in Ramirez argued that the procedures used to exclude him from treatment in the California Rehabilitation Center denied him his constitutional right to due process. (Id. at 265.) The issue in Ramirez was “whether the due process clauses of the California Constitution mandate that an individual be granted procedural protections prior to his exclusion from the [California Rehabilitation Center].” (Id.) The Ramirez court indicated that a patient like appellant, who challenged a decision of exclusion from the California Rehabilitation Center, had an important interest in: (1) being informed of the nature and reasons for the proposed action; (2) ensuring that a decision was not based on erroneous or irrelevant facts; and (3) presenting his case for not being excluded. (Id. at 274.) The Ramirez court held that “the due process clause entitle[d] the patient-inmate an opportunity to respond to the grounds for the exclusion prior to the final exclusion decision.” (Id. at 275.)

Here, DMV admitted that a hearing officer’s decision can be reviewed and altered by a hearing officer’s manager without notice to a Respondent or their counsel. Additionally, DMV admitted that a hearing officer can be ordered to change his or her initial decision with respect to a license suspension without a rehearing or notice to a Respondent or their counsel. As indicated above, the ability to unilaterally execute a change of an initial hearing decision by a manager without notice to a licensee does not comport with due process as stated in California Dui Lawyers. The Court gives substantial weight to DMV’s admissions that it made during discovery under Whitmire. The possibility of unilateral action by a manager of a hearing officer certainly can be viewed as arbitrary since it can be done without notice and does not allow that licensee to be heard on that unilateral change. The Ramirez case indicates that arbitrary procedures such as that does not comport with due process. Defendants’ second supplemental brief does not cite to any evidence to rebut the fact that DMV admitted to the availability of unilateral actions by a hearing officer’s manager in discovery.

Moreover, while Defendants cited to evidence in their separate statement in opposition to Plaintiffs’ motion for summary judgment (See UMF No. 15), DMV made contrary admissions during discovery. Defendants cannot create a triable issue of material fact on this point by contradicting prior discovery responses under Whitmire. Plaintiff has established their entitlement to summary adjudication with respect to the second cause of action under Paramount Petroleum.

Merits of the Third Cause of Action

“A taxpayer may sue a governmental body in a representative capacity in cases involving fraud, collusion, ultra vires, or failure on the part of the governmental body to perform a duty specifically enjoined.” (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 160.) “[A] taxpayer is not entitled to injunctive relief under Code of Civil Procedure section 526a where the real issue is disagreement with the manner in which government has chosen to address a problem.” (Californa Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1258.) “If the APS system violates drivers’ due process rights, as CDLA alleges, it is illegal and a waste under section 526a.” (Id.)

Due to the Court’s discussion above with respect to the admission made by DMV during discovery about unilateral power of a DMV manager to change a hearing officer’s decision without notice or a rehearing for a Respondent, the Court finds that this is a clear violation of due process under the rule that notice is required articulated in California Dui Lawyers as well as in Today’s Fresh Start.

Thus, Plaintiffs are entitled to summary adjudication on the third cause of action in the complaint.

The Court DENIES Plaintiffs’ motion for summary judgment.

The Court GRANTS IN PART Plaintiffs’ motion for summary adjudication. The Court GRANTS summary adjudication with respect to issues number 2 and 3. The Court DENIES Plaintiffs’ motion for summary adjudication as to issue number 1.

DEFENDANTS’ MOTION

Based on the discussion of the applicable law and facts with respect to Plaintiffs’ motion, Defendants’ motion is mostly MOOT. The Court DENIES Defendants’ motion for summary judgment as it is clear from the Court’s discussion above that triable issues of fact exists. The Court, however, GRANTS Defendants’ motion for summary adjudication as to issues 2, 2A, 3, and 5. The Court DENIES Defendants’ motion for summary adjudication as to issues 1, 1A, 1B, 2B, 2C, 4, 6, and 7.

Plaintiffs are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 3rd day of December 2019

Hon. Holly J. Fujie

Judge of the Superior Court


[1] On September 11, 2019, the Court entered the stipulation between the parties that substituted Steve Gordon (“Gordon”) as the named Defendant with respect to the DMV because he replaced Jean Shiomoto as the director of the DMV on or about August 21, 2019.

Case Number: BC553552    Hearing Date: October 30, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CALIFORNIA DUI LAWYERS ASSOCIATION, etc., et al.,

Plaintiffs,

vs.

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, et al.,

Defendants.

CASE NO.: BC553552

ORDER RE:

CONTINUANCE OF HEARING ON MOTIONS FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR SUMMARY ADJUDICATION

Date: October 30, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiffs California DUI Lawyers Association (“CDLA”) and Steven R. Mandell (“Mandell”)

RESPONDING PARTIES: Defendants California Department of Motor Vehicles (“DMV”) and Jean Shiomoto (“Shiomoto”)

The Court has considered the moving, opposition, and reply papers field by each party in connection with their respective motions for summary judgment, or in the alternative, summary adjudication. The Court has also considered the first iteration of the supplemental briefs filed by the parties, and the second iteration of supplemental briefs filed by the parties.

On the Court’s own motion, the Court CONTINUES the hearing on the parties’ respective competing motions for summary judgment, or in the alternative summary adjudication, scheduled for 10/30/2019 at 8:30 a.m. at Stanley Mosk Courthouse in Department 56 to 12/03/2019 at 8:30 a.m. in this Department 56 the Court to review the arguments advanced by the respective parties.

Moving Party is ordered to give notice of this ruling.

Dated this 30th day of October 2019

Hon. Holly J. Fujie

Judge of the Superior Court