Diaz v. Gordon CA2/6 ( 2022 )

Filed 10/6/22 Diaz v. Gordon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JHONNATAN I. LEMUS DIAZ, 2d Civil No. B318157
(Super. Ct. No. 21CV02534)
Plaintiff and Appellant, (Santa Barbara County)
v.
STEVE GORDON, as Director,
etc.
Defendant and Respondent.
A California Highway Patrol (CHP) officer arrested
Jhonnatan I. Lemus Diaz for driving under the influence of
alcohol. After an administrative hearing, the Department of
Motor Vehicles (department) suspended Diaz’s driver’s license.
Diaz appeals from the denial of a petition for writ of
administrative mandamus upholding the department’s ruling.1
He contends the hearing officer abused his discretion and denied
1 Steve
Gordon is respondent as the Director of the
Department of Motor Vehicles. (Gerwig v. Gordon (2021) 61
Cal.App.5th 59, 64, fn. 3.)
due process in denying his motion to continue the administrative
hearing. We affirm and deny the request for attorney’s fees.
FACTUAL AND PROCEDURAL HISTORY
A CHP officer observed Diaz driving erratically on the
freeway. The officer visually estimated Diaz’s speed at 90 miles
per hour, and the patrol vehicle’s radar showed Diaz driving 92
miles per hour.
Diaz exhibited objective symptoms of intoxication and
failed several field sobriety tests. His preliminary alcohol
screening (PAS) breath results registered at .127 and .133
percent alcohol. He agreed to take an evidentiary breath test (see
People v. Vangelder (2013) 58 Cal.4th 1, 5, fn. 1) and gave
samples of .13 and .12 percent alcohol. The officer issued an
administrative per se driver’s license suspension order. (Veh.
Code, § 13353.2.)
Diaz’s counsel requested an administrative hearing
regarding the license suspension. (Veh. Code, § 13558.) On May
5, 2021, counsel received notice that the hearing was set for June
9 at 11:15 a.m. Diaz’s counsel also received discovery consisting
of the CHP officer’s statement, the arrest report, the evidentiary
breath test strip, and Diaz’s driving record. (Gov. Code,
§ 11507.6.)
Almost three weeks later, on May 25, Diaz’s counsel mailed
subpoenas duces tecum (SDT’s) to the California Department of
Justice (DOJ) and the CHP. The SDT’s ordered that the records
custodians appear and produce documents at the June 9 hearing.
They further provided that the custodians were not required to
appear in person if they produced the records with an affidavit
compliant with Evidence Code sections 1560, 1561, and 1562.
On June 8 at 4:04 p.m., the DOJ faxed the department the
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requested documents, consisting of Diaz’s breath test; use,
accuracy, and maintenance records for the breath testing
instrument; and the CHP officer’s breath testing training
certificate and records.
On June 8 at 4:43 p.m., Diaz’s counsel faxed the
department a motion to continue the hearing. Counsel stated
that his assistant contacted the DOJ on June 8 and was told the
subpoenaed documents were faxed to the department that day.
Counsel’s assistant also contacted the CHP and the department
on June 8 and was told that CHP had sent the subpoenaed
records, but the department had not received them. Thus, Diaz
sought to continue the hearing “to a future time and date.”
The department’s hearing officer faxed the DOJ documents
to counsel the morning of the hearing at 9:55 a.m. Diaz’s counsel
stated he received them an hour and five minutes before the
hearing.
The department received the documents from CHP the
morning of the hearing at 11:16 a.m. Diaz’s counsel received the
CHP documents the day after the hearing. The CHP documents
consisted of accuracy and calibration records regarding the PAS
device, an audio and video recording from the CHP officer’s patrol
vehicle, and radar calibration and testing records.
Before the hearing began on June 9, the hearing officer
denied the motion to continue because the department provided
timely discovery in early May, and because the SDT’s were
untimely issued. The hearing began at 11:20 a.m. Over Diaz’s
counsel’s objection, the hearing officer admitted into evidence the
CHP officer’s statement, the arrest report, the breath test results,
and Diaz’s driving record. Diaz’s counsel declined to present
evidence because he was “unprepared to go forward,” “denied the
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opportunity to review evidence,” and “denied the opportunity to
formulate arguments.”
The hearing officer upheld the suspension. (Veh. Code,
§ 13558, subd. (f).) He found the CHP officer had reasonable
cause to believe Diaz drove under the influence of alcohol with
.08 percent or more by weight of alcohol in his blood. (Veh. Code,
§§ 13558, subd. (c)(2), 13557, subd. (b)(3).)
Diaz challenged his driver’s license suspension in a petition
for writ of mandate in the superior court. (Veh. Code, § 13559,
subd. (a); see Lake v. Reed (1997) 16 Cal.4th 448, 454.) Following
argument, the court denied the petition. The court found the
hearing officer did not abuse his discretion when he denied the
motion to continue.
DISCUSSION
Abuse of discretion
An administrative hearing may be continued in the
discretion of the hearing officer on a showing of good cause. (Gov.
Code, § 11524, subd. (b); Bussard v. Department of Motor Vehicles
(2008) 164 Cal.App.4th 858, 863-864 (Bussard).) Good cause to
continue a hearing may be shown where the party has acted with
“reasonable diligence.” (Bussard, at p. 864.)
A request for judicial review is treated as a petition for writ
of administrative mandamus and may be granted if the
department failed to conduct “a fair trial” or there was a
“prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd.
(b).) The court may rescind the license suspension if “the
department exceeded its constitutional or statutory authority,
made an erroneous interpretation of the law, acted in an
arbitrary and capricious manner, or made a determination which
is not supported by the evidence in the record.” (Veh. Code,
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§ 13559, subd. (a).)
On appeal, the “‘appealed judgment is presumed to be
correct . . . and prejudicial error must be affirmatively shown.’”
(Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 100.) “We
review a ruling on a motion for a continuance for an abuse of
discretion.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970,
1036.) “Such decisions will be upheld unless a clear abuse is
shown, amounting to a miscarriage of justice. [Citations.]”
(Bussard, supra, 164 Cal.App.4th at p. 863.) The issue is not
whether we would have granted a continuance under these
circumstances, but whether it “is so irrational or arbitrary that
no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377.)
The hearing officer here acted within his discretion. Diaz’s
counsel waited almost three weeks to issue the SDT’s. The SDT’s
requested the documents be produced at the hearing on June 9.
Rather than appear in person, the custodians were given the
option to produce the documents in compliance with Evidence
Code section 1560, which allows delivery “by mail or otherwise”
“within 15 days after the receipt of the subpoena.” (Evid. Code,
§ 1560, subd. (b) & (b)(2).) Even if the subpoenas were received
the same day they were mailed, the records were not due until 15
days later, on June 9, the date of the hearing. Had counsel
served the subpoenas earlier, the production date for the
documents would have occurred before June 9.
Diaz cites Vehicle Code section 14104.5, which permits the
hearing officer to issue SDT’s before or after the hearing has
commenced. But this section does not address a licensee’s
diligence in issuing an SDT before a hearing and whether there is
good cause to continue the hearing.
5
Diaz also contends the denial of the continuance is
motivated by “personal animus” of the hearing officer against
Diaz’s counsel. The record does not support this contention.
Due process
Diaz contends the denial of the continuance constitutes a
violation of his due process right to a fair hearing. “‘A challenge
to the procedural fairness of the administrative hearing is
reviewed de novo on appeal because the ultimate determination
of procedural fairness amounts to a question of law.’” (Hall v.
Superior Court (2016) 3 Cal.App.5th 792, 808.) There is no due
process violation here.
“‘[I]t is not every denial of a request for more time that
violates due process even if the party fails to offer evidence.’”
(People v. Jenkins (2000) 22 Cal.4th 900, 1039.) “[I]f the
defendant cannot show he or she has been diligent in securing
the attendance of witnesses, or that specific witnesses exist who
would present material evidence, . . . the court’s ruling denying a
continuance does not support a claim of error under the federal
Constitution.” (Id. at pp. 1039-1040.) The hearing officer here
acted within his discretion when he determined Diaz had not
acted diligently to obtain documents before trial. Nor has Diaz
shown he would have presented additional material evidence.
This case is unlike Petrus v. Department of Motor Vehicles
(2011) 194 Cal.App.4th 1240 (Petrus), upon which Diaz relies.
There, counsel requested discovery pursuant to Government Code
section 11507.6, which required the department provide discovery
“prior to the hearing.” (Petrus, at p. 1244.) Counsel acted
diligently by requesting discovery “approximately one month
before the hearing.” (Ibid.) The department provided the blood
alcohol result to counsel minutes before the hearing. (Ibid.) The
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court concluded the licensee was denied the due process right to
“the full and fair opportunity to present a meaningful case.”
(Ibid.)
In contrast here, the department provided Diaz with
discovery five weeks before the hearing. The DOJ and CHP
complied with the SDT’s by providing the documents within 15
days of receipt. Diaz’s counsel did not act with diligence to
ensure the documents would be provided earlier.
Nor has Diaz shown the discovery was necessary “to
present a meaningful case.” (Petrus, supra, 194 Cal.App.4th at
p. 1244.) Diaz’s counsel stated that he always reviews documents
that “go[] to multiple Title 17 compliance issues that are
definitely relevant in any given proceeding.” But he does not
contend the documents provided here show regulatory violations
that would have cast doubt on the tests’ reliability or would have
rebutted the presumption that the tests were valid. (See Gerwig
v. Gordon, supra, 61 Cal.App.5th 59.) Accordingly, “no prejudice
resulted” from the denial of continuance. (Bussard, supra, 164
Cal.App.4th at p. 865; see Rebney v. Wells Fargo Bank (1990) 220
Cal.App.3d 1117, 1141-1142 [denial of continuance upheld
viewing potential prejudice in hindsight].)
Moreover, denial of the continuance was harmless. “No
judgment shall be set aside . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.”
(Cal. Const., art. VI, § 13.) Diaz makes no showing that the
subpoenaed documents refute the evidence that the CHP officer
had reasonable cause to believe Diaz drove under the influence
and was lawfully arrested.
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Attorney’s fees
Diaz requests attorney’s fees. He is not entitled to
attorney’s fees because the administrative determination is not
“arbitrary or capricious,” and he did not “prevail[] in the civil
action.” (Gov. Code, § 800, subd. (a).)
DISPOSITION
The judgment is affirmed. Respondent shall recover costs
on appeal.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
 Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution
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Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
Law Offices of William C. Makler and William C. Makler;
Law Offices of Andrew F. Alire and Andrew F. Alire for Plaintiff
and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Kenneth C. Jones and Anthony William
Gomez, Deputy Attorneys General, for Defendant and
Respondent.