Dec 11, 2017

 

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, December 6, 2017, 3:00 p.m.

Courtroom 18 – Hon. René Auguste Chouteau

3055 Cleveland Avenue, Santa Rosa

 

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.

 

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 MUST notify the Court by telephone at (707) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, December 5, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

PLEASE NOTE:  The Court no longer provides Court Reporters for this calendar.  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-258903, Maningding v. Smith

 

            Defendant California Department of Public Health’s (“CDPH”) motion for summary judgment is denied, but summary adjudication of the fifth through seventh causes of action is granted.

 

            To begin, on a procedural matter, Code of Civil Procedure section 437c(b)(2) states in relevant part: “An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.”  (Underlining added.)  And, as stated in Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624–25: “[T]he case law has been strict in requiring good cause to be shown before late filed papers will be accepted. The case of Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 33, 193 Cal.Rptr. 839, provides an example of good cause: there counsel for the opposing party was retained only one day before the hearing on the motion for summary judgment.  No such circumstance is shown by this record and we are, as always, disinclined to add further contentiousness to the burdens of motion practice in the trial courts. We can see no reason here to state an exception to the general rule, investing broad discretion in the trial courts to regulate the submission of materials in connection with pending motions.”

 

            Here, the opposition papers (including 166 evidentiary objections) were not filed until November 27, 2017 – only 9 days before the hearing date.  Plaintiff has provided no explanation for the late-filing, so the court cannot assess whether good cause exists.  However, since Plaintiff timely served the opposition on CDPH, and trial is set within the next 30 days, the court will consider Plaintiff’s opposition papers.

 

            Moving to the merits of the motion, this is an employment action alleging the following causes of action: (1) failure to make reasonable accommodation; (2) failure to engage in the interactive process; (3) failure to prevent discrimination or harassment; (4) discrimination and harassment based on race, ethnicity, national origin and/or language; (5) violation of the California Family Rights Act (CFRA); (6) violation of the Family and Medical Leave Act (FMLA); and (7) unfair business practices under Business and Professions Code sections 17200, et seq.

 

            CDPH’s unopposed request for judicial notice of the complaints and charges Plaintiff filed with the Department of Fair Employment and Housing is granted.

 

            Plaintiff’s evidentiary objections are overruled as to numbers 75-77.  The court declines to rule on the balance of Plaintiff’s objections because they are immaterial to the court’s disposition of this motion.  (Code Civ. Proc. § 437c(q).)

 

            CDPH’s evidentiary objections to Plaintiff’s declaration are sustained as to numbers 1-3, 6-7, 10, 13, 15-18 and 20 and overruled as to the rest.

 

            In order to addresses the causes of action logically, the court addresses them out-of-order:

 

Fourth Cause of Action

 

            Plaintiff is Filipino and English is his second language.  In this cause of action, Plaintiff alleges discrimination and harassment based on race, ethnicity, national origin and/or language pursuant to Government Code section12940.

 

Discrimination

 

            Under California’s three-step burden-shifting analysis, Plaintiff must establish a prima facie case of discrimination by showing, in relevant part, that: (1) he was performing competently in the position he held; (2) he suffered an adverse employment action; and (3) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-55.)  An “adverse employment action” for purposes of this analysis “must materially affect the terms, conditions, or privileges of employment to be actionable.”  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.)

 

            CDPH argues Plaintiff cannot establish a prima facie case because he cannot show an adverse employment action.  Plaintiff’s response to Special Interrogatory No. 20 only identifies separation based on the AWOL statute as the adverse employment action.  (Perkell Decl., Ex. C.)  However, this court previously decided on a motion for judgment on the pleadings that Plaintiff is barred by collateral estoppel from asserting he was wrongfully terminated for being absent without leave.  Plaintiff fails to respond to this argument in his opposition and therefore impliedly concedes it.

 

Harassment

 

            Plaintiff alleges he was treated unequally compared to his white co-workers and with hostility by his supervisor, Andrea Patten.  He primarily asserts that Patten, negatively commented on his ability to speak English and his accent in front of other colleagues.  (Maningding Decl., ¶ 11.)  Plaintiff further identified the following instances in his declaration:

 

·         During a meeting with colleagues, including Patten, the dietitian Kerry Kelly “became rude and short tempered making negative with comments about me during my presentation.  Kelly was asking me about a specific code and I was trying to answer her question as best I could.  Andrea Patten said nothing to stop Kelly from being rude and disrespectful towards me.”  (Maningding Decl., ¶ 13.)

 

·         “At some point, Andrea Patten, who was sitting at the end of the conference room table, yelled firmly “[w]hy don’t you look it up?”  I was embarrassed and humiliated.  All of my colleagues were present and looking on.  Because I could not respond quickly enough, Andrea ridiculed me and said for all to hear, ‘I doubt that he can even find it.’”  (Maningding Decl., ¶ 14.)

 

·         “On another occasion, within ear shot of other employees, Andrea Patten asked in a mockingly and loud offensive tone whether I had learned English during my elementary school years in the Philippines.  I was offended and embarrassed.” (Maningding Decl., ¶ 15.)

 

            As stated in Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35:

 

“[California's] Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) ... explicitly prohibits an employer from harassing an employee on the basis of race, sex or [ethnicity.]” (Etter v.Veriflo Corporation (1998) 67 Cal.App.4th 457, 464, 79 Cal.Rptr.2d 33.) Harassment includes “epithets, derogatory comments or slurs....” (Ibid.)…To prove a claim under Title VII, the harassment must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive working environment.’ ” (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49.)

 

            “In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.”  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.) 

 

            “In many cases, a single offensive act by a co-employee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different.” (Dee v. Vintage Petroleum, Inc., supra, 106 Cal.App.4th 30, 36.)  In Dee the court held as follows:  “An employee's supervisor asks her to lie about company business, asks her to secretly take a document from the desk of another supervisor, insults her and uses profanity in her presence.  On one occasion he makes a negative comment about her race.  Here we conclude these circumstances coupled with a single ethnic remark are sufficient to create a triable issue of fact whether the employer has created a hostile work environment.”  (Id. at p. 30.)

 

            Accepting Plaintiff’s evidence as true, the court finds Plaintiff has raised a triable issue of material fact as to this claim.  Accordingly, summary adjudication is denied as to this claim.

 

Third Cause of Action

 

            Plaintiff alleges CDPH failed to prevent discrimination and harassment.

 

            CDPH argues this claim fails because Plaintiff has failed to show discrimination or harassment, however, the court finds Plaintiff has raised a triable issue of material fact as to his harassment claim.

 

            CDPH also argues that Plaintiff never complained about the harassment while employed at CDPH therefore this cause of action fails.  Plaintiff states he did complain to Patten’s manager, Edwin Hoffmark, about the harassment.  (Plaintiff’s response to Defendant’s Fact No. 61.)  Accordingly, the court finds Plaintiff has raised a triable issue of material fact as to this cause of action.

 

First Cause of Action

 

            Plaintiff alleges CDPH failed to reasonably accommodate his back injury.  The June 18, 2014 doctor’s note Plaintiff provided CDPH from Dr. Chanson provided that “This patient is placed on modified activity at work and at home from 6/18/2014 through 7/9/2014.”  It further stated the modified activity to include: “Drive: Not at all.”  Finally, the doctor’s note stated: “If modified activity is not accommodated by the employer than this patient is considered temporarily and totally disabled from their regular work for the designated time and a separate off work order is not required.  (CDPH’s Fact No. 77.)

 

            The court finds a triable issue of material fact exists as to whether CDPH reasonably accommodated Plaintiff’s disability by refusing his request to take medical leave, or to treat his inability to drive to work as a basis for considering Dr. Chanson’s note to be an “off work” order.  (Plaintiff’s response to CDPH’s Fact Nos. 92-94.)  CDPH had already accommodated Plaintiff’s first “off work” order from Dr. Melendres from June 10 to June 11, 2014, and CDPH does not provide evidence that it would have been unduly burdensome to similarly accommodate Plaintiff based on Dr. Chanson’s note.  A trier of fact could conclude that it was unreasonable for CDPH to ignore Plaintiff’s commute dilemma, especially in light of the doctor’s note which applied to work and home and clearly required Plaintiff not to drive at all.  Therefore, summary adjudication of this claim is denied.

 

Second Cause of Action

 

            Plaintiff alleges a failure to engage in the interactive process in the second cause of action.

 

            As stated in Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598:

“When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to ‘ “isolate the cause of the breakdown ... and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” ’ ” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261, 102 Cal.Rptr.2d 55.) Thus, “the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that ... the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Id. at p. 263, 102 Cal.Rptr.2d 55.)

 

            The court finds CDPH has failed to establish that it did everything in its power to find a reasonable accommodation.  The facts indicate Plaintiff bears some responsibility for the breakdown in the interactive process.  However, as explained above in relation to the failure to reasonably accommodate claim, CDPH refused to consider the doctor’s note as an “off work” order because it interpreted the note as applying to no driving only while at work.  (See CDPH’s Fact No. 78.)  CDPH, therefore, saw no reason to contact Dr. Chanson for further clarification.  (Ibid.)  CDPH’s arguably overly-narrow interpretation of the doctor’s note appears to have been a substantial cause for the breakdown in good faith discussions.  Accordingly, summary adjudication of this claim is denied.

Fifth Cause of Action

 

            Plaintiff’s claim that CDPH violated the California Family Rights Act fails because Plaintiff has not raised a triable issue of material fact as to a key element: whether he was eligible for leave in the first place.  (CACI 2600 & CDPH’s Fact No. 127.)  This claim additionally fails because Plaintiff failed to exhaust his administrative remedies. Plaintiff’s allegation that CDPH failed to provide him requested leave under CFRA was not included in his DFEH/EEOC charges and would not reasonably have been uncovered during the DFEH investigation.  (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1617.) Consequently, the court grants summary adjudication of this cause of action.

 

Sixth Cause of Action

 

            Similarly, Plaintiff’s claim that CDPH violated the Family and Medical Leave Act fails because Plaintiff has not raised a triable issue of material fact as to a key element: whether he was eligible for FMLA’s protections.  (Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, 1243 & CDPH’s Fact No. 127.)  Therefore, summary adjudication of this claim is granted.

 

Seventh Cause of Action

 

            Plaintiff alleges violation of Business and Professions Code sections17200, et seq. in the seventh cause of action.  Summary adjudication of this cause of action is granted because Plaintiff has failed to establish that he filed a timely claim under the Tort Claims Act.

 

            In sum, the court denies summary adjudication of the first through fourth causes of action and grants summary adjudication of the fifth through seventh causes of action.

 

            Plaintiff shall submit an order consistent with this ruling.

 

 

2.         SCV-259044, Oswald v. Landmark Builders, Inc.

 

            Cross-Complainant’s motion for summary adjudication is granted.

 

            Cross-Complainant’s unopposed Request for Judicial Notice of the complaint and cross-complaint is granted.  Cross-Complainant’s evidentiary objection number 1 to the Paige Declaration is sustained, and objection numbers 2 - 4 to the Joseph Declaration are overruled.

 

            This is a construction defect case involving a single-family home in Healdsburg.  One of the areas of work alleged by Plaintiff homeowners to be defective is the stucco exterior.  (Complaint, ¶ 17(c).)

 

            Cross-Complainant Stewart-McCalvain Construction Corporation dba Landmark Builders, Inc.’s (“Landmark”) was the general contractor on the job.  Landmark moves for summary adjudication of subcontractor Pacific Plastering’s duty to defend based on the indemnity provision contained in the subcontract agreement and Civil Code section 2778(4) as applied in Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541.

 

            Cross-Defendant Pacific Plastering asserts in opposition that the court cannot determine the duty to defend at this stage of the litigation – a contention this court rejects as the duty to defend issue is ripe for adjudication pursuant to the California Supreme Court’s decision in Crawford.  Pacific Plastering also contends that it has raised a triable issue of material fact as to the affirmative defenses of unconscionability and rescission.

 

            In Crawford, the court reasoned:

 

“[S]ubdivision 4 of section 2778, by specifying an indemnitor's duty ‘to defend’ the indemnitee upon the latter's request, places in every indemnity contract, unless the agreement provides otherwise, a duty to assume the indemnitee's defense, if tendered, against all claims ‘embraced by the indemnity.’ The indemnitor's failure to assume the duty to defend the indemnitee upon request (§ 2778, subd. 4) may give rise to damages in the form of reimbursement of defense costs the indemnitee was thereby forced to incur. But this duty is nonetheless distinct and separate from the contractual obligation to pay an indemnitee's defense costs, after the fact, as part of any indemnity owed under the agreement. (Id., subd. 3.)

 

Implicit in this understanding of the duty to defend an indemnitee against all claims ‘embraced by the indemnity,’ as specified in subdivision 4 of section 2778, is that the duty arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed. This duty, as described in the statute, therefore cannot depend on the outcome of that litigation. It follows that, under subdivision 4 of section 2778, claims ‘embraced by the indemnity,’ as to which the duty to defend is owed, include those which, at the time of tender, allege facts that would give rise to a duty of indemnity.7 Unless the indemnity agreement states otherwise, the statutorily described duty ‘to defend’ the indemnitee upon tender of the defense thus extends to all such claims.”

 

(Crawford v. Weather Shield Mfg. Inc., supra, 44 Cal.4th 541, 557–58.)

 

            As analyzed below, the court finds the factors identified in Crawford have been established by Landmark’s undisputed facts.

 

            Plaintiffs have alleged that Landmark is liable for construction defects related to the exterior stucco work, which was within Pacific Plastering’s scope of work on the project.  (Landmark’s Fact No. 4.)  Despite Pacific Plastering’s argument to the contrary, these allegations are sufficient to trigger its duty to defend.  (See UDC-Universal Development v. CH2M Hill (2010) 181 Cal.App.4th 10, 21: “Although the HOA complaint did not specifically identify each subcontractor or the details of each role in the project, its general description of the defects in the project implicated CH2M Hill's work.  This was sufficient to trigger CH2M Hill's duty to defend.”)

 

            The terms of the indemnity provision do not expand or narrow Pacific Plastering’s duty to defend and the court finds the undisputed facts show Plaintiffs’ stucco defect claims are “embraced” by the parties’ indemnity agreement.  Specifically, Pacific Plastering agreed to furnish the materials and perform all labor necessary to fully complete the exterior stucco work and to defend Landmark from any claim “arising out of or resulting from performance of the Subcontractor’s work under this Subcontract.”  (Landmark’s Fact Nos. 7-9 &11.) 

 

            The court further finds that Pacific Plastering has failed to raise triable issues of material fact as to the affirmative defenses of unconscionability and rescission.

 

Unconscionability

 

            Pacific Plastering contends the indemnity provision is unconscionable and therefore unenforceable.  “[U]nconscionability has both a ‘procedural’ and a ‘substantive’ element.”  (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)  As summarized by the court in Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846:

 

“The procedural element focuses on ‘oppression’ or ‘surprise.’ [Citation.] Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice. Surprise involves the extent to which the supposedly agreed-upon terms are hidden in a prolix printed form drafted by the party seeking to enforce them. [Citation.] The substantive element has to do with the effects of the contractual terms and whether they are overly harsh or one-sided. [Citations.]”

 

(Id. at p. 853, citations and footnote omitted.)

 

            Pacific Plastering has provided evidence of procedural unconscionability.  It appears the subcontract is a pre-printed, standardized document drafted by Landmark.  Pacific Plastering has provided additional evidence of oppression or surprise based on unequal bargaining power and indications the subcontract was presented on a take-it-or-leave it basis.  (Pacific Plastering’s Additional Facts, Nos. 4, 6-8.)  

 

            However, there is no evidence of substantive unconscionability and “the elements of procedural and substantive unconscionability must both be present before a court may refuse to enforce a contract.”  (Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1054.)

 

            “[A] contractual term is substantively suspect if it reallocates the risks of the bargain in a objectively unreasonable or unexpected manner.”  (A & M Produce Co. v. FMC Corp., supra, 135 Cal.App.3d 473, 487.)  Contrary to Pacific Plastering’s argument, the indemnity provision at issue is not barred by law.  Civil Code section 2782 governs indemnity agreements in construction contracts and deems certain indemnity terms – but not the one at issue here – unenforceable as a matter of law.  And as discussed above, Civil Code section 2778 governs interpretation of indemnity agreements.  Under subdivision (4) of Section 2778, in the absence of a contrary intention, a duty to defend is implied by the indemnity provision itself.  (Crawford v. Weather Shield Mfg. Inc., supra, 44 Cal.4th 541, 557-58.)  It is hard to imagine that an indemnity provision which does not run afoul of Section 2782, and is interpreted in conformance with Section 2778, could be deemed so inherently unfair or one-sided as to shock the conscience.  Accordingly, Pacific Plastering has not raised a triable issue of material fact as to unconscionability.

 

Rescission

 

            Cross-Defendant Pacific Plastering contends Landmark failed to pay the remaining $10,316 owed under the subcontract.  Therefore, Pacific Plastering asserts it has raised a triable issue of material fact as to the affirmative defense of rescission based on failure of consideration.  (Civ. Code § 1689(b)(2).)

 

            “Assuming the moving party has met its burden of production, the opposing party must make an affirmative showing on matters on which it has the burden of proof at trial. [See CCP § 437c(p)]” (Weil and Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 10-F, §10:255.)

 

            In re Estate of Wong (2012) 207 Cal.App.4th 366 the court explained rescission:

 

The court does not rescind contracts but only affords relief based on a party effected rescission. Both the grounds for rescission and the means by which parties may rescind their contract are governed by statute. (See Civ.Code, § 1688 et seq.)…The steps that a party must take in order to effect a rescission of the contract are set forth in Civil Code section 1691, which states, in part: ‘Subject to Section 1693, to effect a rescission a party to the contract must, promptly upon discovering the facts which entitle him to rescind if he is free from duress, menace, undue influence or disability and is aware of his right to rescind: [¶] (a) Give notice of rescission to the party as to whom he rescinds; and [¶] (b) Restore to the other party everything of value which he has received from him under the contract or offer to restore the same upon condition that the other party do likewise, unless the latter is unable or positively refuses to do so.’ In the present case, appellant has not established or even argued that she followed the steps necessary to rescind her agreement with Bresler.”

 

(In re Estate of Wong, supra, 207 Cal.App.4th 366, 383, underlining added.)

 

            While Pacific Plastering provided evidence that Landmark failed to pay $10,316 for the work at issue in this action (Pacific Plastering’s Additional Fact No. 1), it failed to provide any evidence that it followed the steps required to rescind the contract. Accordingly, it has failed to make the required affirmative showing.

 

            Based on the foregoing, the court grants Landmark’s motion for summary adjudication.  The court finds as a matter of law that Pacific Plastering’s duty to defend Landmark arose when Landmark tendered its defense.

 

            Landmark shall submit an order consistent with this ruling.

 

 

3.         SCV-259105, Kizer v. County of Sonoma

 

            Motion to compel production of subpoenaed documents is denied.

 

            In this wrongful death action, Defendant Sonoma Valley Unified School District (“SVUSD”) served deposition subpoenas on a number of county agencies/departments and medical providers, as well as a fire department, seeking production of various medical records relating to the treatment, evaluation and transportation of Plaintiff’s deceased minor child.  According to SVUSD, decedent was a ward of the juvenile court at the time of his death, and the majority of these records appear to be contained in decedent’s juvenile case file.  However, per California Rules of Court, rule 5.552(b)(4): “Juvenile case files may not be obtained or inspected by civil or criminal subpoena.”  Per Welfare and Institutions Code §827(a)(2)(A), SVUSD must petition the juvenile court to obtain the case file.

 

            Consequently, this court does not have jurisdiction to compel release of the juvenile case file.

 

            SVUSD, which filed a request for disclosure of the juvenile case file on August 27, 2017 in the juvenile court, will have to await the juvenile court’s decision.

 

            The court finds the motion is also procedurally defective.  No meet and confer declaration was filed as required under Code of Civil Procedure section 2025.480(b) and no separate statement was filed pursuant to California Rule of Court, rule 3.1345(a)(5).  SVUSD claims an attempt to meet and confer was unnecessary because the subpoenaed parties were required to object; and that no separate statement was necessary because no substantive response was made to the subpoenas.  SVUSD cites no authority in support of this conclusion.  In fact, had SVUSD engaged in the meet and confer effort, it presumably would have discovered the need to petition the juvenile court for access to the juvenile case file.  Furthermore, a separate statement identifying the documents requested and the objections made would have required SVUSD to articulate specifically what records were sought and why it believed the asserted privileges and privacy objections should not prevent an order compelling production.  The combined motion filed by SVUSD failed to provide sufficient authority and analysis to support the relief sought as to each category of documents sought from each of the nine nonparty deponents.  It is unclear to the court which categories of documents sought are included in the juvenile case file and which are not.  Therefore, to the extent SVUSD needs documents not contained in the juvenile case file, the motion is denied without prejudice.

 

            SVUSD shall submit an order consistent with this ruling.

 

 

4.         SCV-259620, Belanger v. Serafica (the Court will provide a Court Reporter for this post-trial motion)

 

            Defendant’s motion to tax costs is granted in part.

 

            Plaintiff’s costs bill shall be taxed in the amount of $950.  Plaintiff is therefore awarded total recoverable costs of $8,398.15, which shall be added to the judgment issued in this action.

 

 

5.         SCV-260703, Howard v. Shiomoto

 

            The hearing on this matter is CONTINUED to Friday, January 5, 2018, at 3:00 p.m. in Courtroom 18.  The court provides the following tentative ruling on the Petition for Writ of Mandamus to Review Administrative Decision:

 

            This case is on calendar for Petitioner John Walter Howard’s (“Petitioner”) Writ of Mandamus under Vehicle Code section 13559 and Code of Civil Procedure section 1094.5.  In his petition, Petitioner seeks an order directing respondent, Jean Shiomoto, Director of the Department of Motor Vehicles and the Department of Motor Vehicles (“Respondents”) to set aside the suspension of Petitioner’s driving privileges.  Respondents oppose this request.

 

            Petitioner’s Request for Judicial Notice of Exhibits A-B from the related criminal case, SCR-699181 is denied.  The petition is also denied.  Petitioner has failed to meet his burden of proof to demonstrate that Respondents’ findings are contrary to the weight of the evidence.  (See, Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 167-168; see also, Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508.)  “The court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Lake v. Reed (1997) 16 Cal.4th 448, 456-457; see also, Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817].) 

 

            First, the fact that CHP Officer Schnack signed his APS Statement sixteen (16) minutes before he recorded the results of Petitioner’s blood test, which showed Petitioner had a 0.105 BAC, does not render the entirety of Officer Schnack’s Statement inherently unreliable.  (See, Hildebrand v. DMV (2007) 152 Cal.App.4th 1562, 1569 [In meeting its burden, the DMV may present any relevant evidence if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.].)  Even an unsworn police report constitutes evidence on which responsible persons are accustomed to rely.  (Ibid.)  Similarly, the fact that Officer Schnack recorded the time he observed Petitioner driving without his lights on as 1:26 “PM” in instead of 1:26 “AM” does not make the entirety of the officer’s first hand observations necessarily untrustworthy.  Petitioner’s objections are form over substance and his argument that the APS is an “altered document” that “undermines the trustworthiness of the [entire] document” is simply not credible or supported by any evidence.  Thus, the weight of the evidence, including the two PAS Test result and the Officer’s objective first hand observations support Respondents’ findings.

 

            Second, Officer Schnack had “reasonable suspicion” to initiate the traffic stop based on his observation that Petitioner violated the Vehicle Code.  As Petitioner points out in his brief, a police officer’s reasonable suspicion that a driver has violated the vehicle code justifies a traffic stop and detention.  (See, People v. Watkins (2009) 170 Cal.App.4th 1403, 1408 [reasonable suspicion of a Vehicle Code violation is sufficient to justify traffic stop].)  Here, Officer Schnack observed Petitioner driving at night without his lights on, which is a violation of the Code.  (See, Cal. Veh. Code § 24250 [“During darkness, a vehicle shall be equipped with lighted lighting equipment…”].)  Petitioner misinterprets this section to mean that a vehicle need only be equipped with lighting equipment but does not need to have them turned on.  However, this argument has no merit and ignores that the statute expressly requires that the lighting equipment be “lighted.”  Thus, “a traffic stop for failure to have illuminated headlights is a valid investigatory stop.”  (United States v. Phillips, 9 F.Supp.3d 1130, 1136 (E.D. Cal. 2014), citing United States v. Lopez, 2008 WL 1735142 *3-4 (C.D. Cal. Apr. 8, 2008); see also, United States v. Rojas-Millan, 234 F.3d 464, 468-469 (9th Cir.2000) [finding traffic stop valid investigatory stop when police officers observed defendant operating vehicle in darkness without lights illuminated.].)  Thus, because Officer Schnack observed Petitioner driving without his headlights, the officer had more than “reasonable suspicion” that Petitioner was violating a traffic law and the subsequent traffic stop was a valid investigatory stop, regardless of the fact that it occurred several minutes later and several miles away and notwithstanding the fact that Petitioner had turned his light on by the time of the stop.

 

            Third, even assuming the BAC Test in this case was done without Petitioner’ consent and constitutes an “unreasonable” search and seizure, the courts seldom apply the exclusionary rule in administrative cases, even ones in which severe penalties are imposed based on the admission of illegally seized evidence.  (Dept. of Transp. v. State Pers. Bd. (2009) 178 Cal.App.4th 568, 576–577.)  In fact, courts have specifically held that the exclusionary rule does not apply to driver’s license suspension proceedings.  (Park v. Valverde (2007) 152 Cal.App.4th 877, 880.)  Thus, the exclusionary rule does not apply in this case and Respondents properly considered the results of that test.  Nonetheless, even if the BAC Test results had been excluded as an unlawful seizure, the weight of the evidence even without that test supports Respondents’ findings.

 

            Finally, it is well-settled that Respondents’ administrative per se procedures are constitutional and afford the Petitioner sufficient due process in this case.  (See, Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1531-1533; see also, Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1133.)  Moreover, Petitioner has provided no evidence or argument, other that the process in general is biased, that the Hearing Officer in this case was biased against Petitioner in any way or for any reason. 

 

            Accordingly, Petitioner’s Writ of Mandamus is denied and the stay of Petitioner’s suspension will be lifted fifteen (15) days from service of the Court’s final ruling on this Writ.

 

            Respondents’ counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312. 

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