Jan 21, 2018

TENTATIVE RULINGS

LAW & MOTION CALENDAR

FRIDAY, JANUARY 19, 2018, 9:00 A.M. **(PLEASE NOTE, ANY REQUESTS FOR ORAL ARGUMENT TO BE HEARD AT 3:00 P.M. ON FRIDAY, JANUARY 19TH)**

 

Courtroom 16 – Hon. Patrick M. Broderick

3035 Cleveland Avenue, Santa Rosa

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m., Thursday, January 18, 2018.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in motions for claims of exemption are exempt from this requirement.

 

CourtCall is available for all Law and Motion appearances, EXCEPT parties in motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.

 

 

 

PLEASE NOTE:  The Court no longer provides Court Reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained Certified Shorthand Reporter to serve in the matter.

 

 

 

1.        SCV-256085 County Of Sonoma v. Quail:

 

            Appearances required.

 

 

2.        SCV-258180 Waller v. Mack:

 

            This matter was dropped at the request of the moving party.

 

 

3.        SCV-259605 County of Sonoma v. Cannon:

 

Motion Denied without prejudice.  Defendant demonstrates that he has, albeit exceedingly belatedly, finally provided new formal responses, rendering this motion moot.  This is without prejudice to Plaintiff bringing a new motion to compel based on the latest responses.  Sanctions of $2,794 awarded in favor of Plaintiff against Defendant.  The motion, when brought, was meritorious in full and Defendant’s conduct demonstrates a clear misuse of the discovery process.  Although Defendant eventually provided responses, this was only after months of delay, more than four months after Plaintiff filed this motion, and only a few weeks before this hearing.

 

 

4.        SCV-260035 Rossetti v. Codding (two motions):

 

Judge Broderick hereby recuses himself from hearing this matter. Notice of new assignment will issue and parties will be noticed of new department and court dates.

 

 

 

5.        SCV-260211 Lorenz v. Shiomoto:

 

Petition Denied.  The proceedings comply with constitutional requirements of due proceeds and Respondent’s decision to suspend the Petitioner’s license is not contrary to the weight of the evidence.

 

Preliminarily, the challenge to the constitutionality of the DMV’s administrative per se procedures and proceedings and the alleged institutional bias of the hearing officer are unpersuasive.  It is well established that these procedures are constitutional and afford Petitioner sufficient due process. See Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1531-1533; Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1133.

 

With respect to the challenges to the findings and evidence, the court finds all of Petitioner’s arguments unpersuasive.  Petitioner did not appear to raise in the underlying proceedings any issue regarding the failure of the arresting peace officer, A. Alford (“Alford”) to note the date and time of the arrest in the sworn statement.  Even if Petitioner had, the argument is not persuasive.  Nothing here shows that the failure to note the time and date of arrest in the sworn report renders the basis for the arrest and findings improper or would be a basis for excluding any evidence.       

 

Respondent surmises that the point of Petitioner’s argument here is to show that it has not been established that Petitioner was under 21 when she was arrested.  See Oppo 12.  It is not clear that this is thrust of Petitioner’s argument but if it is, it is not persuasive.  All the evidence indicates that she was 19, and certainly under 21, at the time of the arrest.  This includes her own statements of her age in the video recording of Alford’s body camera which Petitioner herself submitted into evidence (“the Video”), Alford’s sworn statement including the information of Petitioner’s birthdate and age, and the statement during the DMV hearing, of Petitioner’s own attorney, that Petitioner was still under 21.  AR 33:16-18.  The court also notes that the exclusionary rule generally does not apply to DMV administrative proceedings to suspend licenses because the primary purpose is to remove dangerous drivers from the road, not to punish, which is the role of the criminal proceedings.  Park v. Valverde (2007) 152 Cal.App.4th 877, 887; Gikas v. Zolin (1993) 6 Cal.4th 841, 859.  As the court explained in Park, at 880, the court found “no reason, on the facts of this case, to extend the application of the exclusionary rule… to the DMV's administrative license suspension proceedings.” 

 

In any case, the sworn statement states when and on what date Alford stopped Petitioner and then gave her the breath test while his unsworn reports include additional information about the time and date of arrest. 

 

Veh. Code section 13557(a) adds that the DMV “shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report.”  Emphasis added.  Applying this language, the Supreme Court in MacDonald v. Gutierrez (2004) 32 Cal.4th 150, at 153, expressly stated that it had previously held that the DMV may rely on an unsworn report by a nonarresting officer and that it was in the case before it also holding that section 13557 means that the DMV could rely on the unsworn report of an arresting officer.  See also Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052.  The MacDonald court explained, at 159,

“A police officers report, even if unsworn, constitutes ‘the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.’ ” [Citation.] Again, too, we must not lose sight of the reason for the “slight relaxation of the rules of evidence applicable to an administrative per se review hearing,” a rationale we reiterated in Lake: “[T]he administrative per se laws are intended to provide an efficient mechanism whereby those persons who drive after consuming dangerous amounts of alcohol can have their drivers licenses quickly suspended so as to ensure they will not endanger the public by continuing to drive. [Citation.]” [Citation.]

To summarize: Section 13380 provides the arresting officer's sworn report will contain “all information relevant to the enforcement action.”

 

Therefore, the Legislature clearly anticipates the sworn report will contain all or nearly all of the information necessary to remove the offender's license. In light of this legislative intent, the sworn report cannot be wholly devoid of relevant information. However, so long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arresting officer. In this case, the arresting officer filed a sworn report.

           

Petitioner also relies on inapplicable authority which does not support her position.  For example, she cites to Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, at 813, for the proposition that the failure to include the time of arrest in the sworn report, and the reliance on hearsay evidence to support the finding on that point, renders the decision invalid.  However, Imachi provides no support for this position.  In that case, the court merely ruled that it was improper for a DMV hearing officer to base a decision solely on the officer’s sworn statement which itself contained only hearsay evidence of information about which the officer had no personal knowledge.

 

Petitioner also unpersuasively argues that Alford failed to set forth in the sworn statement the bases for reasonable cause to arrest.  She claims that there is only hearsay evidence for such a finding.  In contrast to the argument about the time of arrest, Petitioner clearly raised this in the administrative proceedings but the argument is not persuasive.

 

An arrest is lawful as long as the arresting officer had a “reasonable cause” to believe that the violation had occurred and the driver was under the influence.  Veh. Code section 13557(b)(1)(A).  This may be based on, among others, witness statements, even if hearsay.  See Mueller v. Department of Motor Vehicles (1985) 163 Cal.App.3d 681, 685; Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133; People v. Jordan (1977) 75 Cal.App.3d Supp.1, 14.  ‘[R]easonable cause is “ ‘ “defined as that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.” [Citations.]’ Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 101. 

 

Again, there is a sworn statement that contains most of the basic information, so the hearing officer may rely on hearsay evidence, including the officer’s unsworn statements, for additional information.  Here, the unsworn statement includes detailed information, such as witness statements that Petitioner was driving erratically and Alford’s own personal perceptions that Petitioner was somehow unaware that the car had a flat tire and yet continued to drive despite obvious problems, Petitioner visibly had blood-shot eyes and smelled of alcohol, had trouble with the field tests, and put her shoes on the wrong feet.  AR 13-14.  Even if that were not enough, the sworn statement on the DS 367M form actually does set forth the reasonable cause, noting and specifying the “objective symptoms of intoxication.” AR 8.   Alford also stated in the sworn report that he saw Petitioner driving the car.  AR 8.  The unsworn statement at AR 13-14 and the Video recording, again which Petitioner herself submitted into evidence, show all of this and more.  The Video shows Petitioner in, and then leaving, the driving seat of the car, stating that she was driving, stating that she could tell something was wrong but did not know what, stating that her shoes were on the wrong feet.  It shows her having difficulty correcting that problem having trouble following the test directions.  It shows her undergoing the preliminary alcohol screening (“PAS”) and breath tests, completing them only with difficulty.

 

Petitioner contends that the failure of Alford to record the PAS results in the sworn statement means that there is no evidentiary basis for the suspension order or that evidence must be excluded.  She offers no explanation for this other than stating that this means that there “is no competent evidence that Petitioner submitted to and completed a PAS nor its results.”  However, Petitioner herself admitted into evidence the chest cam recording which appears to show Alford giving the PAS, and P taking it, with Alford stating on the recording that it showed a BAC of .13%.  P also does not dispute that Alford then offered to P to take either the breath or blood test with P choosing the breath tests, and that Alford recorded and signed the results in the sworn statement, showing a BAC of .14%.

 

Petitioner offers no explanation or authority supporting the argument that the failure to record the PAS results alone renders the arrest unlawful or the order defective or would be a basis for excluding evidence.  The exclusionary rule ordinarily does not apply to DMV proceedings such as this and Petitioner offers no persuasive explanation as to why it should apply here. 

 

Nothing indicates that the PAS results are necessary as a basis for finding Petitioner to have been driving under the influence of alcohol or with a blood alcohol content (“BAC”) exceeding the legal limit where, as here there is other evidence to support the finding.  In fact, a PAS is not even required for making a preliminary determination of sobriety prior to arrest.  People v. Bury (App. 2 Dist. 1996) 41 Cal.App.4th 1194.

 

Finally, Petitioner argues that the decision is improper, and the breath-test results must be excluded, because Alford simply offered her a choice between a blood and breath test without telling her of the penalties for refusing to do either.  However, while it is true that an officer is supposed to provide this warning, nothing indicates that this, in of itself, necessarily invalidates the test or the decision and, as Respondent contends, in this case it is not prejudicial.

 

As already discussed, the exclusionary rule does not generally apply to DMV administrative proceedings.  Petitioner most strenuously raises the exclusionary rule on this issue but offers nothing to show that it should apply here.  She relies on cases involving violation of the 4th Amendment in criminal proceedings, not DMV administrative proceedings.

 

Moreover, the driver need not be advised of the right to refuse as a prerequisite to a finding of voluntariness; such a warning instead only is support for the finding that a search was in fact a voluntary product of free choice rather than coercion. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226–227; People v. Harris (2015) 234 Cal.App.4th 671, 692 (“failure to strictly follow the implied consent law does not violate a defendant's constitutional rights”); see also Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 118–119, (in context of civil rights claim).  The question of consent most commonly turns on whether the person searched in fact manifested consent for it and whether, in view of “the totality of all the circumstances,” that consent “was in fact ‘voluntary’ or was the product of duress or coercion, express or implied,” and the full admonition does not appear to be a prerequisite to a finding of actual voluntary consent.  Schneckloth, supra; Harris, supra, 689.  Accordingly, an officer's failure to give the full and accurate admonition is instead a consideration in the totality of the circumstances bearing on whether a suspect facing DUI charges actually consented to a blood draw for Fourth Amendment purposes.  Harris, supra, 689. 

 

Moreover, the cases in which the failure to warn of the consequences of refusing to submit to a blood or breath test is a material issue seem to be those where the driver refuses to submit to a test and where the DMV thus bases a suspension order on that refusal.  See, e.g., Blitzstein v. Department of Motor Vehicles (App. 1 Dist. 1988) 199 Cal.App.3d 138; Decker v. Dept. of Motor Vehicles (1972) 6 Cal.3d 903.  It is, after all, clear that the purpose of the warning is to ensure that a driver who refuses to undergo a test does not suffer the consequences of that refusal without being informed of them.  That issue does not arise where the driver says she will undergo a test.  Here, Alford did not warn Petitioner of the consequences of refusing but he asked her if she would submit to a breath test with the option of instead doing a blood test and he then answered her questions about the implications of both before administering the breath test.  She then simply said she wanted to undergo the breath test.  She has not been suspended for refusing to undergo a test, rendering the failure to warn her of the consequences of such a decision non-prejudicial.

 

 

 

6.        SCV-260822, Rones, Jr. v. Shiomoto:

 

The Petition is denied. The DMV’s decision to suspend the Petitioner’s license is not contrary to the weight of the evidence in this situation. Further, it is well settled that DMV’s admin per se procedures are constitutional and afford the Petitioner sufficient due process. (See Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1531-1533; Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1133.) With respect to the Petitioner’s challenges to the evidence itself, the Petitioner did not challenge any of the errors in the DS 367, or the alleged inconsistency with the Arrest report at the hearing itself. (See AR 46.) Failure to raise the evidentiary issues at the hearing waives them. (See e.g. Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 141 [7 Cal.Rptr.2d 818, 823], modified (May 8, 1992).)  Even if the Petitioner had challenged the documentary evidence as untrustworthy, his objections are form over substance. The Petitioner testified that he was pulled over by the officer, that he was given field sobriety tests, and that when he was given a breath test he was told that the test indicated that he had a .14 BAC. (See AR 47-52.) Moreover, the Petitioner testified that he had been drinking prior to driving. (AR 49-50.) The Petitioner’s own testimony supports the documentary evidence that he now claims to be untrustworthy. ( See Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133.) Furthermore, the Petitioner’s arguments regarding the documents do not go to the results of the test or the lawfulness of the arrest itself—they simply complain about the documentary inconsistencies and clerical errors. The Petitioner has not met his burden on this issue. 

 

           

 

 

7.        SCV-260981, Bernal v. Uber Technologies, Inc.:

 

Motion Granted with the following modification:  all of those identified as “Covered Persons” in ¶2.6 of the proposed protective order also will have full access to all information identified and protected as confidential pursuant to the order.  The proposed protective order, so modified, is hereby approved and entered.

 

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