CALIFORNIA DUI LAWYERS ASSOCIATION et. al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES et. al., Defendants and Respondents.
B278092 (Los Angeles County Super. Ct. No.BC553552)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 3/2/18
Rita J. Miller, Judge.
CERTIFIED FOR PUBLICATION
Law Office of Robert S. Gerstein, Robert S. Gerstein; Law Office of Joshua C. Needle, Joshua C. Needle for Plaintiffs and Appellants.
Xavier Becerra, Attorney General, Chris A. Knudsen Assistant Attorney General, Jacqueline P. Hoang and Gary S. Balekjian, Deputy Attorneys General, for Defendants and Respondents.
The California DUI Lawyers Association and attorney Stephen R. Mandell (collectively, CDLA) brought a taxpayer action against the California Department of Motor Vehicles and Jean Shiomoto, director of the Department (collectively, DMV). CDLA alleged that the DMV conducts administrative hearings to determine whether automatic suspension of a driver‘s license is warranted after the driver has been arrested for driving under the influence. CDLA alleged that at these hearings, the hearing officers simultaneously act as advocates for DMV and as triers of fact. CDLA alleged that the lack of a neutral hearing officer violates drivers’ rights to procedural due process under the California and United States Constitutions.
In deciding motions for summary judgment filed by both parties, the trial court held that CDLA did not have taxpayer standing to assert its claims. The court granted DMV‘s motion for summary judgment on that basis, and denied CDLA‘s motion for summary judgment. The trial court did not address the substance of CDLA‘s claims. CDLA appealed, and we reverse. Taxpayer standing under
FACTUAL AND PROCEDURAL BACKGROUND
A. Statutory background
This action involves the “administrative per se” or “APS” system used to suspend a driver‘s license following an arrest for
“When a driver is arrested for driving under the influence and is determined to have a prohibited blood-alcohol content (BAC), the arresting officer or 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. (
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. If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended. (
B. CDLA‘s complaint
CDLA filed a complaint on August 1, 2014, alleging that the APS hearing system is unfair and unconstitutional. CDLA alleged that continued possession of a driver‘s license is a vital property right that cannot be suspended without due process of law. According to the complaint, “[T]he APS system . . . requires the Hearing Officers to act both as advocate for the DMV and arbiter/decision maker, creating an obvious and inherent conflict of interest and bias favoring one party over the other.” CDLA alleged that as a result, 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.” In addition, “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.” CDLA asserted that “[t]hese procedures and practices are unconstitutional on their face and as applied.”
CDLA alleged that according to DMV written materials, the hearing officer at each APS hearing acts as investigator, advocate for DMV, and factfinder. CDLA‘s complaint noted that California‘s Administrative Procedure Act (APA) (
CDLA stated that it is “a non-profit association of California lawyers who defend those accused of driving under the influence.” It alleged that its members “reside, practice, and pay property taxes in Los Angeles County and throughout the State of California.” Individual plaintiff Mandell is a licensed attorney, not a member of CDLA, who also paid property taxes in Los Angeles County.
CDLA asserted three causes of action: violation of
C. CDLA‘s motion for summary judgment
CDLA and DMV each moved for summary judgment. We address CDLA‘s motion first.
CDLA asserted that DMV had admitted the following facts in discovery: APS hearings are “adversarial” and “adjudicative“; the hearing officer‘s role at an APS hearing is “trier of fact as well as an advocate for the department and driver safety“; and a hearing officer‘s APS decision is subject to review by a manager,
CDLA argued that continued possession of a driver‘s license was a fundamental property right that could not be suspended or revoked without due process protections. It asserted that the combination of advocate and adjudication roles in a single, subordinate DMV employee violated required due process protections. CDLA pointed to the provision of the APA that bars a person from serving as a presiding officer in an adjudicative proceeding if that person “has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.” (
CDLA argued, “Exceeding their statutory license under
D. The DMV‘s motion for summary judgment
In its motion for summary judgment, DMV asserted that the first cause of action based on section 1983 and the second cause of action based on the California Constitution failed because CDLA was not directly affected by the APS system and therefore lacked standing to challenge it. DMV also contended that with respect to all three causes of action, CDLA could not assert taxpayer standing because the challenged conduct complied with the Vehicle Code and was therefore legal, and CDLA‘s disagreement with the manner in which DMV chose to apply the law could not provide a basis for taxpayer standing.
DMV also sought summary judgment or summary adjudication on the merits for each cause of action. It argued that the section 1983 cause of action lacked merit because the dual rules of APS hearing officers as advocate and trier of fact did not violate drivers’ procedural due process rights. DMV also asserted that drivers’ due process rights were protected because drivers whose licenses were suspended or revoked could petition for writs of mandate in superior court. DMV further argued that a section 1983 claim could not be brought against a state entity, and Shiomoto, as Director of that agency, was immune from liability. In addition, DMV asserted that the second cause of action based on the California Constitution failed because such claims could
The DMV submitted evidence with its motion, including written discovery requests to CDLA and Mandell; CDLA‘s and Mandell‘s responses to the discovery requests, and excerpts from the depositions of Mandell and CDLA representative Chad Maddox. This evidence focused on standing-related issues.
E. The parties’ oppositions to the motions for summary judgment
The parties opposed each others’ motions. DMV argued that CDLA‘s motion and separate statement were procedurally deficient. It also argued that CDLA lacked standing for the same reasons asserted in the DMV‘s motion for summary judgment. DMV also repeated its arguments that the APS hearing process did not violate due process requirements, and therefore the cause of action under section 1983 failed. DMV asserted that CDLA filed to submit any evidence of actual bias, and its “claim of actual bias is supported by largely inadmissible, irrelevant, and mischaracterized evidence.” DMV also contended that communications between hearing officers and DMV managers did not constitute impermissible ex parte communications. DMV repeated arguments from its motion that due process is provided through judicial review, the section 1983 claims could not be asserted against a state entity or Shiomoto, the claim based on the California Constitution was improper, and that DMV had a legitimate business interest in managing its employees.
DMV submitted evidence in support of its opposition, including excerpts from the deposition of Brian Dawson, a
CDLA‘s opposition to DMV‘s motion repeated the arguments in CDLA‘s motion that the procedures of APS hearings violated due process protections and were unconstitutional, both facially and as applied. CDLA asserted that subsequent judicial review did not “negate the constitutional mandate to provide due process in the first instance.” CDLA asserted that it had standing as a group of taxpayers and as a real party in interest. CDLA also argued that Shiomoto was not immune from liability under section 1983, and that the California Constitution supported the claim for injunctive and declaratory relief. Finally, CLDA asserted that DMV‘s interest in managing its employees did not override its duty to provide due process protections to drivers facing APS hearings.
CDLA submitted several deposition excerpts with its opposition. For example, CDLA submitted excerpts from the deposition testimony of DMV hearing officer Patrice Sims, who recalled one hearing in which she found the police officer‘s
The parties each filed replies. The DMV also objected to portions of the evidence CDLA filed with its motion and opposition.
F. Hearing and court ruling
The court issued a written tentative ruling stating that it was inclined to grant DMV‘s motion and deny CDLA‘s motion on the basis that CDLA lacked standing.
The court stated that CLDA did not have standing to assert the first and second causes of action as real parties in interest because it was not alleging that its (or its members‘) due process rights were directly violated. It noted that CDLA alleged in its complaint that its members are required to spend more time and money as a result of the unfairness of the APS system, and stated, “the DMV has shifted the burden of proof to the plaintiffs on this issue and the plaintiffs have submitted no evidence to support the allegation.”
The court held that CDLA did not have taxpayer standing to assert the third cause of action for illegal expenditure of funds under
The court reasoned that the statutes governing the APS procedure did not require that a hearing office be both advocate and trier of fact. The court said, “Plaintiffs’ challenge is not to
The court concluded that because CDLA did not have standing, DMV‘s motion for summary judgment should be granted. The court held that in light of its ruling on DMV‘s motion, CDLA‘s motion for summary judgment was denied because CDLA lacked standing.
CDLA moved for a new trial, arguing that the court‘s standing ruling was erroneous. The DMV opposed the motion. The court denied the motion, and judgment was entered in favor of DMV. CDLA timely appealed.
DISCUSSION
A. Standing under section 526a
The trial court held that CDLA had neither taxpayer standing under section 526a, nor standing as a real party in interest. CDLA does not challenge the court‘s finding regarding real-party-in-interest standing, and asserts that only taxpayer standing is relevant on appeal. DMV also acknowledges that only taxpayer standing is relevant. We therefore address only taxpayer standing.1
“However strict the concept of standing may be in other contexts, it has been considerably relaxed by section 526a.” (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 481 (Chiatello).) “This relaxation is a consequence of the salutary goal of section 526a: ‘The primary purpose of this statute, originally enacted in 1909, is to “enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.” [Citation.] [¶] California courts have consistently construed section 526a liberally to achieve this remedial purpose.‘” (Ibid.)
“Both standing and the interpretation of statutes are questions of law to which we typically apply a de novo standard of review.” (San Luis Rey Racing, Inc. v. California Horse Racing Board (2017) 15 Cal.App.5th 67, 73.) Here, the facts relevant to taxpayer standing are not in dispute, and therefore we consider the issue de novo.
Nonetheless, we may consider the issue for the first time on appeal. (See, e.g., Steadman v. Osborne (2009) 178 Cal.App.4th 950, 954-955 [“It is well settled that a party may raise the issue of standing for the first time on appeal.“].)
1. Illegal expenditures or waste
Case law has made clear that “waste” does not encompass discretionary governmental action. “[A] taxpayer is not entitled to injunctive relief under Code of Civil Procedure section 526a where the real issue is a disagreement with the manner in which government has chosen to address a problem.” (Coshow, supra, 132 Cal.App.4th at p. 714.) Thus, “the term ‘waste’ as used in section 526a means something more than an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138.)
DMV argues that taxpayer standing is lacking because “the Vehicle Code requires that the APS hearing officer be a DMV employee, and the DMV has discretion in how it applies Vehicle Code section 14112, subdivision (b) to the officer role.”2 CDLA asserts that it is challenging “a hearing structure that by its very
If the APS system violates drivers’ due process rights, as CDLA alleges, it is illegal and a waste under section 526a. “A driver‘s license cannot be suspended without due process of law.” (Cinquegrani v. Department of Motor Vehicles (2008) 163 Cal.App.4th 741, 750; see also Petrus, supra, 194 Cal.App.4th at p. 1244; see also Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 (Nightlife Partners) [“The protections of procedural due process apply to administrative proceedings . . . ; the question is simply what process is due in a given circumstance.“].) “‘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 opportunity to meet it.“’ [Citations.] The opportunity to be heard must be afforded ‘at a meaningful time and in a meaningful manner.’ [Citations.] To ensure that 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.‘” (Today‘s Fresh Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th 197, 212.) In other words, “Due 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.” (Nightlife Partners, supra, 108 Cal.App.4th 81, 90 (emphasis in original).)
Due process guarantees apply to the APS system with respect to drivers’ license suspensions. (See, e.g., Hall v. Superior Court (2016) 3 Cal.App.5th 792, 808-809 [” ‘[T]he constitutional guarantee of due process of law requires a fair tribunal‘” for an APS hearing.].) In other contexts, courts have found that lack of a neutral factfinder or ex parte communications between the decision-maker and other agency employees may render an administrative hearing unfair. (See, e.g., Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 10 [“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“]; Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1585 [in an employment appeal involving a deputy sheriff, combining advocacy and decision-making roles “is inconsistent with true objectivity, a constitutionally necessary characteristic of an adjudicator“]; Rondon v. Alcoholic Beverage Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1289 [decision makers’ practice of reviewing hearing reports prepared by prosecuting attorneys after the hearing but before issuing final decisions violated the APA‘s prohibitions against ex parte communications and use of extra-record information]; Nightlife Partners, supra, 108 Cal.App.4th at p. 94 [city attorney‘s “role as advisor to the decision-maker” regarding denial of the plaintiff‘s regulatory permit “violated petitioners’ right to due process” because the attorney “acted as both an advocate of City‘s position and as advisor to the supposedly neutral decision-maker“].)
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 factfinder. CDLA asserts that this violates the irreducible minimums of procedural due process, and is therefore illegal.
DMV argues that CDLA does not have standing because the APS system is “legal.” It asserts that “DMV hearing officer‘s role as decisionmaker and advocate is authorized by both statute and case law,” and therefore taxpayer standing is unavailable. CDLA counters that this argument is circular: “The DMV is arguing that CDLA has standing to challenge the DMV for due process violation, illegality, or wastefulness, only if it first proves that the DMV violates due process, acts illegally, or is wasteful. The circularity of that reasoning condemns itself.”
We agree with CDLA: the DMV‘s argument that the allegedly unconstitutional action is “legal” seeks to limit standing—a threshold issue—based on a substantive determination of the ultimate issue in this case. “‘The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a . . . court and not on the issues he wishes to have adjudicated.‘” (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 159.)
Cases that challenge the legality or constitutionality of governmental actions fall squarely within the purview of section 526a. In Blair v. Pitchess (1971) 5 Cal.3d 258, for example, the Supreme Court considered the constitutionality of “California‘s claim and delivery law“—a series of statutes allowing a plaintiff to have a sheriff seize property from a defendant before any adjudication of the issues between the parties. (Id. at p. 265-266.) Plaintiff taxpayers filed an action against Los Angeles County and others, alleging that the claim and delivery law was unconstitutional. The defendants asserted that the plaintiffs lacked standing, but the court rejected this argument: “It is clear
County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119 presents another example in which section 526a standing was appropriate to challenge the legality of government actions. In that case, the plaintiffs alleged that the government entity defendants mishandled “requests for specifically described types of public records.” (Id. at p. 124.) The plaintiffs alleged that the defendants’ “‘policies and practices are illegal, in that they do not comply with state law regarding access to public records, including but not limited to, the California Public Records Act (‘CPRA‘), Health and Safety Code section 11495, Government Code section 12525, and the Political Reform Act.‘” (Ibid.) The court held standing under section 526a was appropriate to challenge the government‘s actions: “The purpose of the CPRA is furthered, not obstructed, by citizen suits under Code of Civil Procedure section 526a to enforce the CPRA‘s provisions.” (Id. at p. 130; see also Hector F. v. El Centro Elementary School District (2014) 227 Cal.App.4th 331, 342 [“The public interest in enforcing [California] antidiscrimination and antiharassment statutes also provides . . . standing to bring a taxpayer action under Code of Civil Procedure section 526a.“].)
DMV‘s position that CDLA lacks standing because the DMV‘s actions are “legal” is based on cases that are factually inapposite. For example, DMV cites Lyons v. Santa Barbara County Sheriff‘s Office (2014) 231 Cal.App.4th 1499 (Lyons), in
DMV also cites Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017 (Lucas), in which the plaintiff alleged that the defendant “entered into an employment contract with its general manager.” (Id. at p. 1021.) The plaintiff conceded that the manager‘s contract was legal, and the court noted that in general, a section 526a action may not be used to challenge discretionary actions. (Id. at p. 1027.) The court held that the plaintiff‘s section 526a action was inappropriate, because the specifics of the legal contract were properly within the defendant agency‘s control: “This is a decision which lies within the sound discretion of the agency, pursuant to statutory authority. We may not disturb it.” (Ibid.)
CDLA‘s standing is therefore not undermined by the DMV‘s assertion that its actions are “legal.” The trial court‘s conclusion that CDLA lacked standing because the APS hearing system complied with the laws that CDLA challenges was erroneous.
DMV also argues that CDLA did not have standing under section 526a because DMV‘s actions “would not otherwise go unchallenged in the absence of taxpayer actions.” DMV asserts that “the Legislature has crafted mechanisms for drivers to challenge the results of DMV‘s APS hearings,” such as seeking judicial review of DMV actions, and “[b]ecause there are ready avenues other than a taxpayer suit to challenge the statutory scheme at issue here, [CDLA does] not have standing.”
This reasoning was rejected decades ago by the Supreme Court. “[T]he existence of individuals directly affected by the challenged governmental action . . . has not been held to preclude a taxpayers’ suit. Numerous decisions have affirmed a taxpayer‘s standing to sue despite the existence of potential plaintiffs who might also have had standing to challenge the subject actions or statutes.” (Van Atta v. Scott (1980) 27 Cal.3d 424, 447-448.) Moreover, the Court in Blair v. Pitchess, supra, held that limiting standing under section 526a by requiring only actions involving parties with individual interests would undermine the purpose of section 526a: “[T]he primary purpose of section 526a was to give a large body of citizens standing to challenge governmental actions. If we were to hold that such suits did not present a true case or controversy unless the plaintiff and the defendant each had a special, personal interest in the outcome, we would drastically curtail their usefulness as a check on illegal government activity.” (Blair v. Pitchess, supra, 5 Cal.3d at p. 269.)
DMV relies on Animal Legal Defense Fund v. California Exposition and State Fairs (2015) 239 Cal.App.4th 1286 (ALDF), in which the plaintiffs attempted to bring a section 526a action,
ALDF is not applicable here. The “statutory scheme” by which individuals’ procedural due process rights are protected consists of the United States and California Constitutions, and the related statutes and case law interpreting and applying those provisions. Procedural due process rights do not have a specific statutory scheme and enforcement provisions similar to California‘s animal cruelty laws. CDLA has asserted those rights
3. Common law standing
CDLA also contends that it has taxpayer standing under the common law. “[C]ommon law authority for taxpayer suits [states] that a ‘taxpayer in his representative capacity can sue a municipality only in cases involving fraud, collusion, ultra vires, or a failure on the part of the governmental body to perform a duty specifically enjoined.‘” (Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal.App.3d 22, 26.) “[A] governmental agency that acts outside of the scope of its statutory authority acts ultra vires and the act is void.” (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1066 fn. 4.)
CDLA asserts that if “the DMV hearing structure is unlawful, its operation is ultra vires, giving rise to common law taxpayer standing.” DMV counters that it “complied with applicable law” and therefore its actions were not ultra vires. As we discussed above, a determination of standing—a threshold issue—does not rely on a determination of the ultimate issues to be determined in the case. Because CDLA has challenged the APS system as unconstitutional and therefore ultra vires, CDLA has common law taxpayer standing to assert these claims.
Because CDLA had standing under section 526a and common law taxpayer standing, the trial court‘s holding that CDLA lacked standing was erroneous.
B. Cross motions for summary judgment
CDLA asserts that if we find it had standing, we should proceed to decide the merits of the motions for summary judgment, grant CDLA‘s motion, and deny DMV‘s motion. DMV asserts that the scope of appellate review should be limited to
“A litigant‘s standing to sue is a threshold issue to be resolved before the matter can be reached on its merits.” (Apartment Ass‘n of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128.) Here, the trial court decided only the threshold issue of standing. This appeal reaches us following cross-motions for summary judgment, in which the parties submitted evidence in support of their respective motions (including evidence of the combined advocate/factfinder roles of DMV hearing officers and evidence of substantial ex parte communications affecting the outcome of APS hearings). However, the trial court did not reach the merits of CDLA‘s claims.
In addition, the trial court did not reach evidentiary issues that typically guide the scope of appellate review. “Under the summary judgment statute, we examine the evidence submitted in connection with the summary judgment motion, with the exception of evidence to which objections have been appropriately sustained.” (Paslay v. State Farm General Insurance Company (2016) 248 Cal.App.4th 639, 644 Without the benefit of decisions from the trial court regarding the merits of the motions or the parties’ objections, we decline to consider the parties’ motions for summary judgment on appeal in the first instance.5 We express no opinion on the issues that remain for determination. DISPOSITION The judgment is reversed. On remand, the trial court shall vacate the orders granting DMV‘s motion for summary judgment and denying CDLA‘s motion for summary judgment. CDLA is entitled to costs on appeal. CERTIFIED FOR PUBLICATION COLLINS, J. We concur: EPSTEIN, P. J. MANELLA, J.