Cisneros v. Dep't of Motor Veh.

324 Cal.Rptr.3d 724

Gabriela CISNEROS, Plaintiff and Appellant,

v.DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents. [And 49 other cases.^*]

F081373

Court of Appeal, Fifth District.

Filed August 21, 2024

Certified for Partial Publication.^**

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. (Super. Ct. No. BCV-19-100294)

Middlebrook & Associates and Richard O. Middlebrook, Bakersfield, for Plaintiffs and Appellants.

Xavier Becerra and Rob Bonta, Attorneys General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian, Lauren Sible and Brad Parr, Deputy Attorneys General for Defendants and Appellants.

OPINION

FRANSON, J.

Appellants are drivers whose licenses were suspended by the Department of Motor Vehicles (DMV) after they were arrested for driving under the influence. Each driver invoked the right to challenge the suspension in an "administrative per se" (APS) hearing conducted by the DMV. Before the APS hearings, the drivers requested continuances based on their counsel’s conflicting court appearances. The DMV denied the requests, went forward with the hearings, and issued administrative decisions reinstating the suspensions. The drivers challenged the DMV’s denials of the continuances by filing petitions for writs of mandate in the superior court. The superior court denied their petitions. The drivers appealed.

The briefing in this appeal was divided into two stages at the request of the Attorney General. The first stage addressed whether the drivers’ petitions for writ of mandate were timely—a question that might have been dispositive of several of the drivers’ cases. The first stage ended in April 2022, when we adopted the statutory interpretation set forth in part II. of this opinion. We concluded the 10-day time limit in Government Code section 11524, sub- division (c)¹ for seeking judicial review of a continuance "denied by an administrative law judge of the Office of Administrative Hearings" does not apply to APS proceedings because a DMV hearing officer is not an administrative law judge. Applying this interpretation to the facts, the drivers’ writ petitions were timely, and the issues reserved for the second stage needed to be addressed.

The second stage addressed whether the DMV hearing officers abused the discretion granted by section 11524, subdivision (b) when they determined the drivers’ requests to continue their APS hearings were untimely and denied them. As explained below, we conclude the denials of the requested continuances were a prejudicial abuse of discretion. We further conclude the proper remedy is to provide the drivers with new APS hearings that address the merits for their challenges to the suspension orders.

We therefore reverse the denial of the drivers’ writ petitions and remand for further proceedings.

FACTS

Overview

Appellants are persons whose California driver’s licenses were suspended by the DMV after they were arrested for driving under the influence (collectively, Drivers). Each driver was served with an order suspending his or her driver’s license and subsequently requested an APS hearing.² The relevant APS hearings on the license suspensions were set in early 2019. Drivers have been represented by Attorney Richard 0. Middlebrook throughout the administrative and judicial proceedings.

In each APS proceeding, the driver requested a continuance of the hearing due to a conflict with Attorney Middlebrook’s court calendar. The requests for a continuance that are relevant to this appeal were made in January through April 2019. The requests were denied, the APS hearing proceeded as scheduled, and the DMV issued a written decision reimposing the license suspension. The administrative decisions stated the driver or the driver’s representative "did not appear for the indicated hearing nor was any evidence presented on your behalf and a notice of action against your driving privilege in this case was not returned unclaimed."

Drivers’ petitions for writ of mandate assert that for nearly two decades the policy of the DMV Bakersfield Driver Safety Office (BDSO) towards continuances required requests for continuances based on good cause to be made at least 10 days before the APS hearing date, but also allowed requests to be made less than 10 days in advance of the APS hearing when other trials or court hearings went forward, were extended beyond the time anticipated, or trailed. Drivers contend this practice reflected the vagaries of the criminal court calendar where scheduled court events represented possible conflicts with APS hearings set for the same time, but those court events often would not result in an actual conflict necessitating the continuance of the APS hearings. The writ petitions assert that when an actual conflict did not arise, the APS hearings could go forward. For example, if a trial scheduled to begin on a particular day was "trailed," the attorney acting as trial counsel would become available to appear in APS hearings scheduled for later that day. Alternatively, when court proceedings went forward and created an actual conflict with a scheduled APS heating, the DMV routinely would grant last minute continuances of the APS hearings.

Around 2017, the DMV appointed a new local manager for the BDSO, Christopher Pitchford. Manager Pitchford began making changes in the way the BDSO scheduled APS hearings and handled continuances. He required that requests for continuance based on conflicts with court trials and hearings be made at least 10 days in advance, based on the perception that nearly all such trials and hearings were scheduled more than 10 days in advance. Attorney Middlebrook and others contacted Mr. Pitchford and explained that, because they were scheduled for trials and court hearings nearly every single week, the new policy would force them to request continuances for nearly all APS hearings, which would prevent them from conducting APS hearings when the trials were settled, continued, or dismissed. The attorney asserted these dispositions of court matters often occurred, which opened their schedules and allowed them to conduct APS hearings.

Drivers alleged that Manager Pitchford insisted on implementing the new policy requiring continuance requests to be made 10 days in advance and, accordingly, requests for continuance were made on that basis. As a result, continuance requests were made in nearly all APS proceedings and the DMV granted those requests for almost two years. Attorney Middlebrook asserts that during the two-year period the policy was in place, he conducted only two APS hearings and "continuances were scheduled at least two-months out but ha[d] been scheduled as much as six-months out," with rescheduling sometimes taking over a year.

In July 2018, Manager Pitchford phoned Attorney Middlebrook’s office to speak with him about continuances. Attorney Middlebrook stated they agreed to return to the old system that allowed last minute continuances when necessary—that is, when an actual conflict arose with court proceedings instead of when there were potential conflicts.

In December 2018, the DMV reassigned Manager Pitchford and replaced him with a part-time interim manager, Michael Windover, from the DMV’s Oxnard Driver Safety Office. Attorney Middlebrook did not know this change was being made. With the change in managers, requests for a continuance made by Attorney Middlebrook began to be denied as untimely and the APS hearings were conducted without the driver or counsel being present, which resulted in the DMV issuing decisions reinstating the suspensions. Drivers contend over 70 APS hearings were conducted by the DMV in abstentia between January 17, 2019, and April 19, 2019. The specific details of each Drivers’ APS proceedings will not be described in this opinion, but a few examples will be provided.

Granados

Andrew Granados was arrested for driving under the influence on November 10, 2018. His APS hearing was scheduled for January 4, 2019, at 11:15 a.m. On January 4, 2019, at 8:09 a.m., a legal assistant from Attorney Middlebrook’s office faxed the BDSO a letter requesting a continuance of the APS hearing due to Middlebrook’s illness. Later that day, Driver Safety Hearing Officer Raul Boone issued a letter stating: "Your request is granted."

On January 7, 2019, the BDSO sent Attorney Middlebrook a notice stating Granados’s APS hearing had been rescheduled for January 17, 2019, at 11:15 a.m. Also on January 7, 2019, the Kern County Superior Court rescheduled the jury trial in Jose Bravo’s second degree murder case to January 16, 2019, so discovery related to an expert witness for the prosecution could be provided to the defense. Based on the conflict with the Bravo trial, Attorney Middlebrook sent the BDSO a letter dated January 14, 2019, requesting a continuance of Granados’s APS hearing.

On January 17, 2019, at 10:49 a.m., Hearing Officer Boone faxed Attorney Middlebrook a form stating the request for a continuance of Granados’s APS hearing "is denied because: the trial regarding People v. J. Bravo … did not go forth as stated on your Request for Continuance letter dated January 14, 2019, therefore, I will expect you to appear for the hearing scheduled at 11:15 AM on January 17, 2019." At 10:55 a.m. that day, Attorney Middlebrook faxed another letter requesting a continuance of Granados’s APS hearing. The letter described a telephone conversation the day before between Attorney Middlebrook and Hearing Officer Boone about the Granados continuance and the continuance of the Bravo trial to April 2019. The letter also described Attorney Middlebrook’s court appearances for that day in Ridgecrest and Porterville and stated he was unable to attend the APS hearing scheduled for 11:15 a.m.

The Ridgecrest appearances were set for 10:30 a.m. and included a motion hearing in Jamie Graus’s driving under the influence case and a pretrial conference in Michael Melnichak’s driving under the...