*1 C0 C012371. Third Dist. Jan. [Nos. 1994.] EVANS, M. JAMES Plaintiff and v. Respondent, al., DEPARTMENT OF MOTOR VEHICLES et Defendants Appellants.
Counsel Mukai, General, Assistant Daniel E. Chief Lungren, Robert L. Attorney General, General, Shimomura, Attorney Floyd Attorney D. Assistant Cabatic, Linda A. Susan P. Underwood and L. Geoffrey Graybill, Deputy General, for Attorneys Defendants and Appellants. Johnston, Eisen,
Daniel Robert Eisen Lang, & Jay-Alien Marian M. Johnston, Karen Leaf and Ann Perrin Farina for Plaintiff and Respondent. Opinion
SCOTLAND, J. of Department (DMV) Motor Vehicles and direc- its The tor, Pierce, A.A. from trial court’s issuance appeal writ peremptory of mandate aside DMV’s order setting revoking automobile dismantler’s Evans, license James M. doing business as Rio Linda Auto Wreckers Dismantlers, A Z Auto and from the court’s order subsequent awarding fees attorney to Evans to Code pursuant of Civil Procedure section 1028.5 or, Government alternatively, Code section 800. Evans from the trial appeals court’s order an denying award fees to the federal Civil attorney pursuant (42 Act 1988). U.S.C. Rights
The key issues in this presented are whether appeal California’s statutory scheme for notice of an serving accusation and hearing seeking to revoke automobile dismantler’s license is calculated reasonably give and, thus, the licensee notice of the accusation and hearing satisfies due law, process whether DMV abused its discretion in rejecting that, Evans’s claim that his default should be set aside on the ground business, notice was in although fact delivered to his established he did not receive it. that,
The trial court concluded even with the though complied business, scheme notice was statutory delivered to Evans’s scheme is statutory unconstitutional as to the facts of this case applied *6 because Evans did not (a receive actual notice of the proceeding person residing the business received the notice in the mail property alleg- but failed to it edly Evans) did give DMV not with a provide Evans lack establish of actual notice. hearing agree
We with DMV that the trial erred in shall ruling. court so As we the statutory scheme for notice of a explain, serving disciplinary proceeding certified mail at the dismantler’s established of business satisfies place due because it is reasonably calculated dismantler process with notice of the That dismantler did not receive proceeding. allegedly the notice which was served not render the at of business does scheme unconstitutional because actual notice is not a statutory necessary Even though in a disciplinary proceeding. element of service proper law, DMV nevertheless had with due discretion service complied process that Evans did not in showing relief from default adequate to grant upon However, bare, un- accusation and hearing. fact receive notice of the he did not in Evans’s for reconsideration alleging sworn allegation notice, that the lack of notice was showing receive unaccompanied by any insufficient of service or inexcusable was neglect, not due to his avoidance we default. shall reverse DMV to set aside Evans’s Consequently, to compel mandate, will writ of direct order granting peremptory the trial court’s order Evans’s denying petition. enter a new and different the court to we shall reverse the award no is the Because Evans longer prevailing party, fees. attorney Background Facts and Procedural Evans, 1989, 24, alleging against DMV issued an accusation On May automobile dis- governing of statutes and regulations numerous violations dismantler’s or revoke his automobile seeking suspend mantling, accusation, was served by with a notice of hearing, license. The along of record for Evans’s established place certified mail at the address Linda, business, The return receipt in Rio California. West Sixth Street lines, marked “address” and the other had one marked which two signature line marked “address.” Linda Courtain on the was signed by “agent,” 14, 1989, held before an admin- was evidentiary hearing August On 7, On November at the hearing. law Evans did not appear istrative judge. license. On November Evans’s revoking DMV issued its decision Evans’s business certified mail at was served by of the decision copy line marked wife on the Evans’s The return was receipt signed address. “address.” 11, 1989, reconsideration DMV requesting Evans wrote to December
On hearing. notice of the did not receive he ground its decision on matter “not remanded the Evans’s license and decision revoking aside the set offer of allowing but for the sole purpose [Evans] de novo for a license concerning appropriate in extenuation and mitigation” evidence discipline. “on all de novo have a asked to attorney Evans’s rehearing,
At the had businesses whether Evans’s issue the threshold (including matters” the first hearing. notice of had not received law) because Evans *7 the violated that, rehearing the had limited DMV since counsel responded DMV’s the concerning appro- extenuation in or mitigation of evidence production at the made findings attack the Evans was not entitled to discipline, priate that Evans had violated statutes and previous hearing applicable regulations automobile dismantlers. The with governing administrative law judge agreed DMV and restricted the hearing accordingly. the had
Following the administrative law found Evans rehearing, judge order not shown sufficient the mitigation extenuation original modify 1990, 7, his This was On revoking license. decision by May DMV. adopted businesses, a DMV demanded that of Rio Linda Auto agent both Evans’s Dismantlers, Wreckers and A Z to Auto cease at noon and operation turn Evans over all his books and records to DMV.
Evans then filed a petition for writ of mandate to Code of Civil pursuant Procedure section 1094.5 and United section He States Code 1983. that DMV revoked argued his license without and hearing, notice proper his thereby violating right to due both process under the Fourteenth Amend- I, ment to United States Constitution and article section 7 of California Constitution.
In in his declaration of the he not support petition, stated did a receive of the accusation and notice copy of to the adminis- hearing prior trative on He hearing August 1989. declared used Rio property Linda Auto Wreckers at 6715 West in Sixth Street Rio Linda is a ten-acre with parcel five structures on a cottage it: small at the front the property Street, adjacent West Sixth behind the garage directly cottage, an office building, two sheds. Until storage mail for Rio Linda Auto July Courtain, Wreckers was delivered to a mailbox across the street. Linda who the return in signed resided the small receipt, with cottage property brother, her Bettes. Bettes was Rio Ralph Linda Auto Wreckers employed Evans, between February 1985 1989. neither Bettes July According nor Courtain was authorized to receive mail on behalf Evans or his businesses. Evans claimed that no one him the accusation notice gave 24, 1989, He did learn hearing. not until November he when received of DMV’s decision to revoke his license. He declared had copy he never been to be on the given heard merits opportunity charges contained the accusation.
DMV retorted that it notice of the accusation and properly provided with Government compliance Code sections 8311 and where, (c), subdivision which permit service or certified mail by registered here, a statute or rule to file his or her agency requires respondent with the address and to agency notify change address. that Evans argued failed DMV with a address complete would which from served at the accusation structure prevent being wrong *8 Hence, did of business. it was Evans’s fault he not receive at Evans’s notice. mandate, for a writ of as ruling
The trial court Evans’s granted petition of this case seem to the[y] the circumstances particular follows: “[G]iv[en] [effected, not and I believe service was properly be somewhat unique. be be and should granted, I think the writ should consequently, [DMV] issues, all including conduct a new with hearing respect directed to obtained and received and the excuses issue of whether service was properly So, been I will the writ on the there has grounds for that. grant ...[[[] case the peculiar and not sufficient notice in this particular given improper case, so, I am in this case. this it’s unconstitutional as applied facts of [fl] mail that the certified or registered procedure not a blanket decision making unconstitutional, issue needs to reach that se. I don’t think the Court is per of this case.” on the facts Evans’s hearing petition earlier comments at the
The trial court’s here, where, the return believed that as writ of mandate indicate the court other received someone the accusation and notice was showed receipt on DMV to ensure or the licensee’s the burden was agent, than the licensee licensee, Evans, “before hearing received actual notice of that the taken,” with a have Evans is that DMV should provided substantial right certified mail at received the notice served by on whether he actually hearing business, a fair (3) that DMV denied Evans his established place in which he could produce a limited rehearing hearing by only providing a defense to the charges upon but could not present evidence of mitigation was based. which the discipline $7,500 fees attorney pursuant awarded Evans
The court subsequently or, Code Government Procedure section 1028.5 alternatively, Code of Civil States under 42 United award of fees attorney but denied an section Code section 1988.
Discussion the statutory concluding erred in the trial court DMV contends is notice of hearing of the accusation DMV’s service scheme governing that evidence presented to this case on the ground unconstitutional applied the notice Evans never received indicated writ at the on the determine DMV, give did not and DMV served by DMV, Evans’s despite According notice. received the whether he actually certified DMV served by the notice receive claim that he did not personally with statutes address, governing service complied said mail at his business
967 service of accusations revocation of an seeking automobile dismantler’s license satisfied due of law. We process agree.1
“An and fundamental elementary of due requirement process any calculated, which is to be accorded is notice proceeding finality reasonably circumstances, all the under to interested of apprise parties pendency the action and an afford them to their opportunity objections. The present must notice be of such nature as to the reasonably convey informa required tion, . . . and it must a afford reasonable time for those interested to make
their . . . But if appearance. with due for the regard practicalities met, of case peculiarities these conditions are reasonably the constitu tional are requirements satisfied. . . . . . The means employed give [to [fl]. notice interested must be such as one desirous of parties] inform actually the absentee ing might The reasonably adopt accomplish it. reasonable and hence the ness constitutional of chosen method validity be any defended on the it ground that is in itself certain inform reasonably those (Mullane affected . . . 306, .” v. (1950) Central Hanover Tr. Co. 339 U.S. 865, 873-874, 652], 314-315 L.Ed. omitted.) 70 S.Ct. [94 citations Mullane makes it clear that due of law does not process require notice, actual but a method only certain to that reasonably accomplish end. (339 876]; U.S. at 319 L.Ed. at p. (1987) p. Wyatt Conservatorship [94 of 391, 195 632]; Cal.App.3d (1976) 395 v. Cal.Rptr. Chesney Gresham [240 120, 64 Cal.App.3d 238].) 129 “If the form of substituted Cal.Rptr. [134 service is calculated to an reasonably of give interested actual notice party heard, and an proceedings to be the traditional notions of fair opportunity and substantial play (M. in due justice are implicit satisfied.” process Sons, Lowenstein 762, & Inc. Superior (1978) v. 80 Court 768 Cal.App.3d 814].) Cal.Rptr. [145
As we shall our explain, review California’s statutory method serving notice of an accusation and an revoke seeking automobile reviewing 1In hearing, administrative decision made after superior court must without, determine proceeded whether the administrative juris “has inor excess of diction; trial; whether there was a fair and whether there was prejudicial abuse discretion. Abuse of discretion agency] is established if the not proceeded [administrative has law, in the manner order required supported or decision findings, is not Proc., 1094.5, (Code (b).) are findings supported by not the evidence.” Civ. subd. When § substantially right, an administrative decision affects fundamental vested such license, professional revocation of a the independent judgment standard review applies. 392, (Berlinghieri Department (1983) Motor Vehicles v. Cal.Rptr. 33 Cal.3d [188 395-396 891, 383]; Terry Imports, Department York Inc. v. Motor Vehicles P.2d 657 197 790].) Cal.Rptr. 311-312 The Cal.App.3d superior court must examine the admin [242 record independent judgment istrative for errors of law and exercise its upon evidence. (Ibid.; Proc., (c).) Code appellate Civ. The court must the superior sustain (Pasadena findings Sch. Dist. v. supports factual if court’s substantial evidence them. Unified Competence Commission on Cal.Rptr. 314 Cal.3d [142 Professional 53].) P.2d conclude the method is dismantler’s license leads us to reasonably and, thus, the licensee notice of the accusation and calculated give satisfies due of law. process *10 for the
Automobile is dismantling closely regulated industry protection 816, v. (People Shope 128 823-824 public. Cal.App.3d [180 440, 567]; Easley v. 445 Cal.Rptr. People Cal.App.3d [153 such, 396].) As an automobile dismantler is to strict subject Cal.Rptr. Code, (see with numerous statutes and Veh. compliance regulations § 13, 11509; in former et and statutes set forth Cal. Code tit. Regs., seq. § (now et et that the including requirement 413.01 304.01 seq. seq.)), § § her DMV of the location of his or established keep apprised place dismantler Code, (Veh. 11513.) The notification is of business. address requirement § scrutinize and the dismantler’s essential to DMV’s to ability closely regulate sent, Code, 11505, (Gov. DMV where notices be activities. It notifies may § Code, vehicles in the (c); 11513), where DMV may subd. Veh. inspect § Code, 1655, 10656), well as where (Veh. as dismantler’s possession §§ DMV, records, are maintained. which are to by subject inspection pertinent 13, Code, 320, 11505, (b), (c); Cal. Code tit. (Veh. Regs., subd. subd. §§ 304.12, ( 304.14).) now former 413.08 §§ §§ is the dismantler In addition to the address notification requirement, to the relating erect a information sign required 32-square-foot “providing of his established name and the location and address automobile dismantler’s with such business of business so as to enable any person doing Code, 11514.) (Veh. The him automobile dismantler identify properly.” § nature, the office or erected on the exterior of “shall be of a sign permanent area, as to withstand reason- and constructed or so the dismantling painted 13, (now (Cal. Code tit. former 413.02 Regs., able climatic effects.” § 304.04).) § that, 11509, (b) after (a) and subdivisions
Vehicle Code section to an the license issued or revoke may notice and hearing, suspend certain licensee committed if DMV determines the automobile dismantler and of an accusation The notice acts.2 means providing enumerated (c), subdivision in Government Code section is set forth “(a) after notice department, The pertinent part: provides section 11509 2Vehicle Code upon the dismantler issued to an automobile hearing, may suspend or revoke license lawfully entitled thereto is not to whom the license was issued person that the determination (b) chapter as Any specified the causes this following: any of has done ...[[]] or cause, after applicant is to an automobile dismantler refusal to issue a license a cause for to an automobile plates issued special or revoke a license and hearing, suspend notice and dismantler.” which (Veh. to automobile dismantler license revocation applies hearings. Code, (c).)3
Government (c) Code section subdivision provides: “The accusa- tion and all information be sent to accompanying may respondent by any means selected But no order by agency. adversely affecting rights shall be made case respondent by agency unless the any respon- or mail dent shall have been served provided registered personally herein, or shall have filed a notice of defense or otherwise Service appeared. be in the Service manner authorized in civil actions. regis- proved tered mail be shall statute rule agency requires respondent effective if his address with the agency notify change, file if *11 letter the registered containing accusation and material is accompanying mailed, addressed to at the latest address with respondent on the agency.” file (Italics added.) noted,
As we have Vehicle Code section 11513 an automobile requires dismantler to of the location the keep apprised of dismantler’s estab- lished of The business.4 established of business the place is place place Code, where the dismantler (Veh. his or her books keeps and records. 320.)5 8311, accordance with In Government Code section service by certified mail at the automobile dismantler’s established of business place 11509, (c) 3Vehicle Code section “Except provided subdivision states: in Section 11509.1, every hearing provided for in chapter pursuant Chapter this shall be held to 5 11500) (commencing with of 2 Section Part 1of Division 3 of of the Title Government Code.” “(a) provides: 4Vehicle section department Code 11513 The not shall issue an automobile any dismantler’s license applicant place to for that license who not an has established of If changes business as defined this code. the the automobile dismantler site or location of business, place immediately upon his or her established he making change of or shall the she dismantler, notify department. any possession the If the automobile reason ceases to be in place anof established of business from and which he on or she conducts the business for licensed, and, which immediately department upon he or she is he or she shall the notify by department, demand deliver department shall to the the automobile dismantler’s license, (b) provided and all books and by department possession, forms in his or her [f] Any person chapter licensed under closed place this who has his or her established business 11500) may process pursuant (commencing with Chapter be served issued 5 with Section place 2 of by registered of Part 1 of Division 3 of Title the Government Code mail that at business, person writing department unless notified the of another where has address service be made.” “ provides pertinent part: place 5Vehicle Code section 320 ‘Established of business’ is a by [1|] place actually occupied continuously regular periods following: either at (b) pertinent type . . . An automobile dismantler where records the books and [5]] being kept. business conducted are . . .” 970 with notice be any requirement be deemed sufficient compliance
shall mail.6 by registered provided of the accusation and notice of contends that its service
DMV correctly sent to his established of business Evans via certified mail 11505 and 8311 satisfied due with Government Code sections in compliance that, above, where a these sections of law. As specified process with an service file or her address agency, by is his party required if letter containing be effective ... certified mail “shall [certified] mailed, at material is addressed party] and accompanying [to accusation The statute does not require proof address on file with the agency.” the latest or other party in the form of a return receipt signed of service unlike other statutes governing party, acknowledgment receipt 415.40, 417.10, Proc., (See, Civ. mail. Code e.g., service by §§ 243, 417.20; (1985) 38 Cal.3d v. Court Superior see also Johnson & Johnson 1058]; Corp. v. Multitech P.2d Taylor-Rush 695 255 Cal.Rptr. [211 672]; v. Foster Neadeau Cal.Rptr. 217 Cal.App.3d [265 806].) Cal.Rptr. Cal.App.3d [180 anal dismantlers is notice to automobile scheme The governing statutory concerning attorney discipline. in State Bar cases that which applies ogous his or her current Bar the State keep apprised An is attorney required *12 Code, 6002.1, (a).) A notice a (Bus. initiating subd. & Prof. office address. § or former member the member be served “may upon proceeding disciplinary mail, return certified receipt Bar to whom it is directed by of the State address member at the latest member or former addressed to the requested, is State Bar. The service records of the the membership official shown Code, (Bus. & Prof. . . .” mailing. at the time complete service Court has determined proper (c).) The California Supreme 6002.1, subdivi with section a notice in compliance by mailing is effected 548, Cal.Rptr. Cal.3d 559 Bar 51 (c). [273 v. State sion {Middleton of element 321, proper is not a 1326].) necessary Actual notice P.2d where the failure (id., 558), even at p. service in disciplinary proceedings 559.) (Id., at fault. p. is not the attorney’s receive notice to an of sent Likewise, and notice that an accusation we conclude of place at his or her established certified mail by dismantler automobile actual notice with the dismantler calculated to provide reasonably business is is dismantler An automobile dismantler. the against the proceedings is other communication any “Wherever notice or provides: section 8311 6Govemment Code state, any any or the officer by mail to or registered any by law to be mailed required by mail be thereof, by certified shall other communication mailing the notice or such law.” of such requirements a with the compliance to be sufficient deemed (cid:127)971 aware to be of the statutes and his or her presumed regulations governing Therefore, business. the dismantler knows that he or she must DMV keep he of the location of the dismantler’s business and that or she apprised from receive notices and communications DMV at this address. important the The dismantler is the best to ensure of such notices by position receipt available, with matter within DMV the most address complete providing Rental, (Cf. National Ltd. v. United dismantler’s knowledge. Equipment 291].) (1972) 24 Lumber Cal.Rptr. Co. 1016-1017 Cal.App.3d [101 Furthermore, works at the the dismantler has control over who lives or are The dismantler can ensure that residents or employees these premises. and can responsible impress bringing them persons upon importance Hence, dismantler’s attention notices received from DMV. certified letter mailed to the address the dismantler provided by clearly is designated by sign by Vehicle Code section 11514 required reasonably calculated to actual notice to the dismantler as the chances of are minimal. misdelivery
Here, the return and DMV’s certificate service certified mail receipt disclose that DMV with the for constructive service complied procedure set forth in Government (c) Code section subdivision and show that the notice of accusation and Evans’s license delivered hearing concerning was his established business certified mail. Consequently, obtained over personal jurisdiction (Tandy Corp. Superior v. Court 81]) Cal.App.3d him with Cal.Rptr. provided [173 calculated, circumstances, notice reasonably under all the him of apprise pendency of against his license so as to afford him proceedings to be heard. opportunity
The fact that Evans did not receive notice allegedly personally, did thus not attend the does not mean notice him hearing, of due deprived *13 noted, notice, weAs have due of law does not actual process. process require but a method certain only (Mullane to that reasonably end. v. accomplish Co., Central Hanover Tr. 876]; 339 U.S. at at supra, 319 L.Ed. p. p. [94 395; Wyatt, 195 at Conservatorship supra, Chesney v. Cal.App.3d p. of Gresham, 64 at 129.) supra, p. Cal.App.3d Evans that of DMV’s creates a suggests mailing proof only presumption Code, (Evid. the mail was delivered 641 letter addressed and correctly § [a mailed is have been in the received course of properly presumed ordinary mail]) and that he this evidence to rebut presented presumption showing the accusation and notice hearing of were not delivered to Evans or his It the agent. This misses the is that certified argument point. unquestioned mail in was fact delivered to Evans’s established of business. That place did not receive the accusation and notice of personally does hearing because,
not establish lack of notice we have the proper explained, scheme notice or certified statutory only by registered mail to the requires licensee’s established of business—not to the licensee place personally—and such notice satisfies due of law because it is calculated to process reasonably the licensee with notice. provide none,
Evans has cited no and we have found for the authority, proposition that, absent a actual the statutory of service on licensee or requirement agent thereof, service which is calculated a with licensee reasonably notice of an accusation fails to due or of law satisfy process simply that, served, because the licensee claims the notice was fact although or never received it licensee agent personally.
Hence, the trial court erred in of the DMV’s service concluding accusation and notice of mail established certified to Evans’s hearing by of business Evans of his constitutional to due of deprived right process law. because,
This does not end our even DMV’s service though inquiry of the and notice of with law and was accusation hearing complied relief grant consistent with due nonetheless had discretion process, Code, Code, (Gov. 11506)7 (Gov. from default and reconsider its decision § 11521)8 based a that Evans had not received actual notice of showing upon the accusation and hearing. “(a) days provides pertinent part: section 11506 Within 15 after 7Government Code agency upon respondent may him file with the a notice of service of the accusation the (b) if he a respondent The shall be entitled to a on the merits files
defense ....[]]] defense, any specific parts a denial of all of the notice of such notice shall be deemed a waiver of expressly Failure file notice shall constitute accusation not admitted. such grant a right hearing, agency may a in its discretion nevertheless respondent’s but hearing. . .” . “(a) agency may pertinent part: The itself provides Code section 11521 8Government any petition party. on its own motion or on of part a of all or of the case order reconsideration mailing a expire days delivery or a reconsideration shall after power The to order agency date as the effective date of or on the set itself respondent, decision to 30-day period at the termination prior expiration to the decision if that date occurs filing an days agency may grant purpose for the which stay of a of not to exceed time is needed to evaluate If additional application for reconsideration. applicable periods, expiration to the prior filed reconsideration considering days, solely purpose for the for no more than 10 stay expiration of that grant *14 ordering petition taken a within the time allowed If action is petition. no reconsideration, (b) by [(]] may The be reconsidered be deemed denied. case shall and and additional evidence pertinent parts all the of the record such agency itself on judge. law A may assigned be to an administrative may permitted, be argument as subject procedure to be to the assigned judge an administrative law shall reconsideration
973 order, in its written court In the trial held that DMV “abused its discretion 11, in consider Mr. Evans’s made a December 1989 refusing objection, 16, with and at the had not letter 1990 that he been served February hearing, at the accusation and . . to the hearing notice . default prior revoked, which were dismantler’s license special plates [his] a limited at which he was not granting rehearing permitted ... [him] charges examine cross-examine witnesses and a defense to the present on which his dismantler’s license and were revoked.” special plates
The record does the trial not court’s determination. On December support 11, 1989, revocation, 17 was after he informed of his license Evans days a letter wrote to DMV of its reconsideration decision. The sole requesting for his was Evans’s unsworn statement that he did not support request notice receive of the DMV had discretion hearing. Although relief grant from default and reconsider its decision in showing abbreviated light (Lindell (1943) made Evans v. Board by Appeals Co. Permit 23 Cal.2d 4]), 319 P.2d we cannot in not abused its discretion say [144 the matter remanding for a whether Evans received notice. hearing regarding actions, In civil analogous situations in which a provide helpful compar (Cal. 2.41, (Cont.Ed.Bar 1984) ison Administrative Hearing Practice p. § 82), a notice of motion to set aside a “shall default be judgment accompanied an affidavit oath under that the lack of actual by showing notice party’s time defend the was not her action caused his or avoidance of service Proc., Moreover, (Code or inexcusable neglect.” (b).) Civ. where service is made mail with manner set forth in compliance statute, it is the burden to addressee’s he or she did not receive prove notice. (Forslund v. Forslund 486-487 Cal.App.2d Cal.Rptr. [37 489]; v. Tremayne American SMW Corp. Cal.App.2d 229].) P.2d [271
Here, bare, Evans made a that not unsworn he had merely allegation notice he hearing; received no evidence or provided argument sup- assertion, his he lack was alleged nor did establish that the of notice porting fact, due to his not avoidance of service or inexcusable In Evans did neglect. even not this issue. evidence on request present be bald assertion notice was sufficient contends his of no cause, reconsideration, at the time the letter he was he wrote requesting accusation; unaware Courtain had received the notice and he knew only However, he had not received to the no them Evans offers prior hearing. itself, agency in Section evidence no provided 11517. If oral is introduced before member vote he heard the unless or she evidence.” *15 the time explanation why, during between his of DMV’s decision and receipt reconsideration, his written he did not request the matter investigate and to discover the facts his attempt lack of notice. The underlying alleged onus was on Evans to DMV with an provide that he did adequate showing not receive notice and that his lack of notice was not due to his avoidance of service or inexcusable neglect. Evans failed to meet his burden.
At it oral was that argument suggested Courtain’s on the signature line marked “address” rather than the line marked on the return “agent” is receipt sufficient to corroborate Evans’s bald that he did allegation not receive notice of the accusation and We are hearing. Because a unpersuaded. Courtain, such as is layperson, unlikely recognize distinction between lines, the two Courtain’s on the “address” line signature is insufficient to alert DMV that Courtain of was some unknown relation to person who did not on the notice to him. To the the most and pass contrary, logical reasonable that a is for certified mail assumption person signing receipt delivered at Evans’s established would the mail to of business place give out, DMV Evans. As its decision Evans’s li- points subsequent revoking cense, business, served certified mail at his to Evans by place got Courtain, like the earlier notice received was although, by receipt signed Hence, another on the line marked the mere fact by “address.” person the return was Courtain on the “address” line is insufficient receipt signed by to corroborate Evans’s bald that he assertion did not receive the notice and accusation served certified mail at his established of business. place Moreover, Courtain’s does not tend to establish that Evans’s signature service, default was not due to his inexcusable or avoidance of neglect matters which Evans had the burden of upon proof.
In that Evans notify light specific statutory requirement (Gov. DMV of his business address for the notices purpose receiving Code, 11505, Code, (c); 11513), (2) Veh. that his requirement § § Code, (Veh. business be so it could be identified designated clearly properly 11514), (3) the fact DMV that the and accusation were had notice proof delivered certified mail to the address Evans for his estab provided by business, (4) lished in Government Code section place provision (c) registered subdivision that service of the notice accusation by constitutes effective mail to the business address licensee provided by service, argument Evans’s failure to evidence support which was served at his claim that he did not receive the notice his unsworn business, lack of notice and his failure to establish that the alleged DMV neglect, not due to his avoidance of service or inexcusable was to relief from default. could conclude that Evans was not entitled reasonably circumstances, discretion granting only Under did not abuse its *16 in evidence in consistent with the mitigation a limited rehearing put (See Procedure Act defaults. concerning of the Administrative provisions Code, 11520.)9 Gov. § that, Evans’s for reconsid concluding
The dissent asserts DMV with more than something was deficient for failing eration evidence and argument unsworn by any Evans’s allegation unsupported failure to to relief from default due to his alleged his entitlement establishing business, we have the notice which was served at his receive place an administrative and have excessive formalism for proceeding required on the licensee. We an unfair burden disagree. Although imposed procedural form, need not be in a licensee’s for reconsideration any particular request would “. . . ... obviously unsupported by grounds argument request (Cal. Prac not be to the Administrative Hearing very convincing agency.” tice, added.) matter of common cit. italics This is a op. supra, p. in a highly regulated sense. Evans business operates sophisticated entity was war and had the burden of that reconsideration industry establishing licensee engaged ranted. It should come as no to a reasonable surprise unsworn allegation such a business that an highly regulated unexplained, Otherwise, a burden. lack of notice will not suffice to meet the licensee’s could of Government Code section licensee defeat purpose (c)—which effective the service of notice and accusation subdivision makes mail at the licensee’s of business—simply by asserting by registered place address, that, even the notice was served at the business though baldly effect, frustrate the purpose never received it. In the dissent would licensee DMV the unreasonably shifting of Government Code section 11505 by unsworn, lack of claim of burden to the licensee’s negate unsupported notice, to receive notice served or to establish that the licensee’s failure licensee’s was due to the mail at the of business registered place noted, Evans had As we have avoidance of service or inexcusable neglect. had the and lived at his business premises control over who worked to his attention any of bringing them the importance means impress upon and reasonable The logical DMV at the business address. notices served by at certified mail delivered is that a signing receipt assumption person to Evans. the mail would have given established of business Evans’s place Thus, the notice was suspect. he did not receive Evans’s bald assertion that that, circumstances, of a as the licensee it is not unfair to expect Under the business, about the service should have inquired regulated closely “(a) fails to respondent If the pertinent part: provides Code 9Government section upon the may take action based hearing, appear at the file a notice of defense or to may be used and affidavits upon other evidence respondent’s express admissions (b) construed Nothing herein shall be . . . respondent; evidence without notice to [fl] added.) (Italics by way mitigation:” any showing deprive respondent right to make before for reconsideration and should have claim his petitioning supported lack of notice with some evidence and as to his explanation why alleged failure to receive the notice served at his of business was not due to Evans’s avoidance of service or inexcusable neglect. *17 manual, a Evans contends that
Quoting practice agency “[w]hen authorization, a decides to case under due seems to reopen statutory process same notice as for the require substantially hearing original hearing.” Practice, (Cal. 264.) Administrative cit. Hearing op. supra, p. Appar § he believes this means DMV was to conduct an new ently, entirely required when it his for reconsideration. He is evidentiary hearing granted request When an reconsideration to Government wrong. agency grants pursuant 11521, Code v. (Moyer section a de novo is not State required. proceeding 651, 583].) Board 140 654 P.2d Equalization Cal.App.2d [295 “(a) The other Government Code section 11521 Among things, provides: itself order a reconsideration of all of the case on its own part (Italics added.) motion or on . . .” petition any party. reconsideration, In Evans’s for DMV remanded granting request matter “not for a de novo but for the sole allowing hearing purpose in concerning to offer evidence extenuation mitigation” [Evans] Code, (b).) (Gov. subd. In other license appropriate discipline. § words, DMV did not relief from default him to a new entitling Evans grant not whether it decided to reconsider hearing; merely appropriate penalty, in Evans Evans committed the various infractions the accusation. alleged to be heard was notice of the limited new and an hearing opportunity given more was hearing. Nothing required. on the to be reconsidered at subject default, stated, in his had vehicle to obtain relief from but Evans a Simply that reconsideration he did not establish adequately petition seeking that no in the trial court showing he was entitled to such relief. Evans made for writ of of the the facts in his declaration alleged support petition recon- to DMV in his mandate could not have been submitted ex- that this evidence was improperly Nor did he demonstrate sideration. it law judge. Although before the administrative rehearing cluded at from evidence introducing at the rehearing Evans was precluded appears evidence his tender of such lack of notice of the initial hearing, his alleged had been determined by already was too late. The scope rehearing recon- seeking in his letter showing Evans’s inadequate DMV based upon notice issue or sideration, on the letter did not hearing and Evans’s request this matter. evidence to offer on had Evans suggest pertinent declaration Hence, in Evans’s the facts alleged even assuming default relief from he entitled to established was writ petition of his support notice, the trial court should not have considered these facts due to lack of that DMV abused its discretion Evans by failing give determining action, judicial the notice issue. In an administrative mandamus hearing evidence in the administrative record. Additional review is limited to matters available at the time of the administrative is if it was not only admissible record; did from the Evans not establish or was excluded improperly Land Trust v. (Schaeffer that either circumstance was in this case. present 624-625, (1989) 215 fn. City Cal.App.3d San Jose Council 9 [263 Visalia, 813]; Inc. v. New Motor VehicleBd. Toyota Cal.Rptr. Proc., 1094.5, 708]; Code Civ. Cal.Rptr. Cal.App.3d [233 on the (e).)10 Nor could the trial court exercise its independent judgment had not received notice and was evidence to determine proffered the revocation of his license. entitled to a on the merits prior *18 1094.5, Proc., (Code (e).) Civ. that DMV’s service of the trial court concluded wrongly
Because to right his constitutional Evans of accusation notice deprived law, that ruling and because the trial court erred due process whether on Evans with hearing abused its discretion refusing must the judgment received the accusation and notice of hearing, he actually party Evans no is a longer prevailing be reversed. Consequently, conclusion, unnec- it is be reversed. In of our light fee order must attorney Evans’s entitlement contentions concerning address the essary parties’ fees. attorney
Disposition mandate for writ of The trial Evans’s granting petition court’s judgment The trial fees are reversed. awarding attorney and its order subsequent Evans’s request directed to issue a new order denying petition court is on fees. Evans shall DMV’s costs appeal. for attorney pay J.,P. concurred. Puglia, BLEASE, an unfair the majority impose the reason that I dissentfor . J receive actual that he failed to raise the issue burden on Evans to
procedural was revoked. at which his license of the hearing notice (e) court finds “Where the provides: subdivision of Civil Procedure section 10Code which, not have diligence, could reasonable in the exercise of evidence there is relevant that may it respondent, before excluded at the improperly or which was produced been in the (f) case to be reconsidered remanding the provided as subdivision judgment enter its by law to exercise evidence; or, the court is authorized in cases in which that light of hearing on the evidence, at the the evidence may admit the court judgment on independent remanding the case.” writ without that, The with which I notwith- majority indulge assumption, agree, that the notice mail satisfied standing by certified the requirements (b), Government Code section subdivision in an case appropriate reconsideration be where fails to receive it. granted respondent
Government Code section 115211 confers discretion an administrative to order any reconsideration “on Neither the petition party.” section nor other of law the manner of such provision prescribes or form Nonetheless, concludes that the form of petition. majority opinion Evans’s was insufficient raise the claim that reconsideration be because of notice granted should lack of actual of the disciplinary bare, “Evans made a against him. unsworn proceedings merely allegation that he had not notice of he evidence or hearing; received no provided assertion, lack his nor did he establish that the argument supporting alleged notice was his service or neglect.” not due to avoidance of inexcusable ante, 973.) at (Maj. opn., p. decision
In view the the sort of my majority unfairly hindsight, rely upon law,” in which which condemned after the manner Jeremy “dog Bentham indicate them without some trained their people dogs by kicking warning The 473.5 as to Code of Civil Procedure section displeasure. majority point for the have That Evans should followed. guide provision, procedure *19 rule, a addressed to which the judicial Legislature proceedings, supplies to well be to enact or for wise DMV to might promulgate application for administrative not. Evans should not be faulted have proceedings. They to that he would be to the of failing anticipate satisfy requirements required a in an for in order judicial administrative procedure petition rehearing his claim actual notice. of failure receive perfect Administrative have never been held to the subject rigorous proceedings of for before an judicial rehearing “An formality proceedings. application “(a) a of all or agency may 1Section 11521 is follows: The itself order reconsideration as a any to order petition party. power of the case on own motion or on of The part its a days delivery mailing respondent, after the or of decision to expire reconsideration shall 30 occurs the the if that date agency or on the date set the itself as effective date of decision 30 stay of a not to exceed expiration 30-day period to the the or at the termination of prior of grant filing application an for reconsideration. days agency may purpose which the for the the prior time evaluate a for reconsideration filed petition If additional needed to is grant expiration a periods, agency may stay of that expiration applicable the an considering petition. is taken days, purpose the If no action solely than 10 for the no more reconsideration, be shall ordering petition time allowed for a within the on denied. deemed parts of “(b) agency pertinent itself on all the may The case reconsidered be assigned to argument may permitted, may be such evidence and be record and additional administrative, judge law shall assigned to an judge. administrative law A reconsideration before procedure If oral evidence is introduced subject provided to the Section 11517. be itself, heard the evidence.” agency member vote unless he or she no be with same strictness tribunal ... is not to construed administrative a of law.” for a new trial before court in a motion for instance required P.2d (1943) Cal.2d Permit (Lindell Appeals Co. v. Board [144 formalism is unforsee- borrowed 4].) In of this light majority’s policy that to issue put with the statutory policy able. It is also inconsistent need file a written only defense in an administrative proceeding respondent defense, follow which “need not be verified or any particular notice of Code, 11506, (c).) (Gov. form.” the citizenry, exercise enormous over power
Administrative agencies Evans, which, counsel until too late as with often lack the benefit of legal off a to do I cannot countenance any good. cutting potentially game claim of lack of actual notice of the administrative proceeding meritorious with unannounced citizens failed to comply ground unrepresented when the case has reached the identified only procedural requirements letter was to raise courts. In view Evans’s my layman’s adequate appellate and a on the that he be full reconsideration his claim should granted merits of the accusation. full reconsid- have granted
Faced with Evans’s claim DMV should either eration, or granted provisional him make a more formal showing, asked actual claim of excusable lack of to decide the merits of the reconsideration by affording The lattermost action could be sensibly accomplished notice. if his claim of failure of him a on the merits of the accusation only in this to be meritorious. In failing proceed actual notice was first shown under Government Code the discretion afforded it manner DMV abused valid claim of the potentially section 11521 to entertain by effectively failing excusable lack of notice. circumstances, in considering did not err the trial court
Faced with these *20 lack of excusable of his claim which Evans support the evidence proffered 1094.5, (e) subdivision section Code of Civil Procedure of actual notice. “[wjhere the court record bemay augmented that the administrative provides which, of reasonable in the exercise evidence that there is relevant finds excluded which was improperly have could not been diligence, produced which policy The Legislative . . . .” at the before respondent case. to this animates this provision applies statutory of an express for lack to suffer injustice
A court is not bound the absence of express In a salutary statutory policy. invitation to apply fill out law powers exercise its common direction a court statutory (See Revolving Statutes Traynor, to avoid injustice. scheme statutory decided 509.) correctly Having Bar J. 43 State Orbits Common-Law concerning was his relevant evidence that Evans diligent advancing notice, evidence excusable lack of the trial court could consider that Proc., (e).) (See resolve the merits of the Code Civ. question. discretion, I Since the resolution the trial court no abuse presents it DMV to afford Evans would insofar as directs uphold judgment on merits accusation him. against 27, 1994, A for a was denied and February petition rehearing January denied for review Court was respondent’s petition Supreme Mosk, J., March that the be 1994. was of should opinion granted.