CA DUI Lawyers Assn v. CA DMV ( 2018 )


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  • Filed 3/2/18
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    CALIFORNIA DUI LAWYERS                     B278092
    ASSOCIATION et. al.,
    (Los Angeles County
    Plaintiffs and Appellants,         Super. Ct. No.BC553552)
    v.
    CALIFORNIA DEPARTMENT OF
    MOTOR VEHICLES et. al.,
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of
    Los Angeles County, Rita J. Miller, Judge. Reversed with
    directions.
    Law Office of Robert S. Gerstein, Robert S. Gerstein; Law
    Office of Joshua C. Needle, Joshua C. Needle for Plaintiffs and
    Appellants.
    Xavier Becerra, Attorney General, Chris A. Knudsen
    Assistant Attorney General, Jacqueline P. Hoang and Gary S.
    Balekjian, Deputy Attorneys General, for Defendants and
    Respondents.
    INTRODUCTION
    The California DUI Lawyers Association and attorney
    Stephen R. Mandell (collectively, CDLA) brought a taxpayer
    action against the California Department of Motor Vehicles and
    Jean Shiomoto, director of the Department (collectively, DMV).
    CDLA alleged that the DMV conducts administrative hearings to
    determine whether automatic suspension of a driver’s license is
    warranted after the driver has been arrested for driving under
    the influence. CDLA alleged that at these hearings, the hearing
    officers simultaneously act as advocates for DMV and as triers of
    fact. CDLA alleged that the lack of a neutral hearing officer
    violates drivers’ rights to procedural due process under the
    California and United States Constitutions.
    In deciding motions for summary judgment filed by both
    parties, the trial court held that CDLA did not have taxpayer
    standing to assert its claims. The court granted DMV’s motion
    for summary judgment on that basis, and denied CDLA’s motion
    for summary judgment. The trial court did not address the
    substance of CDLA’s claims. CDLA appealed, and we reverse.
    Taxpayer standing under Code of Civil Procedure section 526a is
    appropriate under the circumstances of this case, in which a
    group of taxpayers has alleged that a government entity is
    engaging in “waste” by implementing and maintaining a hearing
    system that violates drivers’ procedural due process rights. We
    therefore reverse the judgment and remand the case for further
    proceedings.
    FACTUAL AND PROCEDURAL BACKGROUND
    A.     Statutory background
    This action involves the “administrative per se” or “APS”
    system used to suspend a driver’s license following an arrest for
    2
    driving under the influence. “Under the administrative per se
    law, DMV must immediately suspend the driver’s license of a
    person who is driving with .08 percent or more, by weight, of
    alcohol in his or her blood. ([Veh. Code,] § 13353.2, subd. (a)(1).)
    The procedure is called ‘administrative per se’ because it does not
    impose criminal penalties, but simply suspends a person’s
    driver’s license as an administrative matter upon a showing the
    person was arrested for driving with a certain blood-alcohol
    concentration . . . .” (MacDonald v. Gutierrez (2004) 
    32 Cal.4th 150
    , 155.)
    “When a driver is arrested for driving under the influence
    and is determined to have a prohibited blood-alcohol content
    (BAC), the arresting officer or DMV serves the driver with a
    ‘notice of [an] order of suspension or revocation’ of his or her
    driver’s license, advising that the suspension will become
    effective 30 days from the date of service. (Veh. Code, §§ 13353.2,
    subds. (b) & (c); 13353.3, subd. (a).) The notice explains the
    driver’s right to an administrative hearing before the effective
    date of the suspension if the driver requests a hearing within 10
    days of receipt of the notice. (Id., §§ 13353.2, subd. (c); 13558,
    subd. (b).)” (Brown v. Valverde (2010) 
    183 Cal.App.4th 1531
    ,
    1536-1537 (Brown).)
    At the hearing, “[t]he sole task of the hearing officer is to
    determine whether the arresting officer had reasonable cause to
    believe the person was driving, the driver was arrested, and the
    person was driving with a BAC of 0.08 percent or higher. If the
    hearing officer determines that the evidence establishes these
    three facts by a preponderance of the evidence, the license will be
    suspended. (Veh. Code, §§ 13558, subd. (c)(1); 13557, subd. (b)(2);
    14104.2, subd. (a).” (Brown, supra, 183 Cal.App.4th at pp. 1537-
    3
    1538 [fn. omitted].) DMV bears the burden of proof. (Petrus v.
    State Dept. of Motor Vehicles (2011) 
    194 Cal.App.4th 1240
    , 1244
    (Petrus).)
    B.     CDLA’s complaint
    CDLA filed a complaint on August 1, 2014, alleging that
    the APS hearing system is unfair and unconstitutional. CDLA
    alleged that continued possession of a driver’s license is a vital
    property right that cannot be suspended without due process of
    law. According to the complaint, “[T]he APS system . . . requires
    the Hearing Officers to act both as advocate for the DMV and
    arbiter/decision maker, creating an obvious and inherent conflict
    of interest and bias favoring one party over the other.” CDLA
    alleged that as a result, the “APS hearings violate the State and
    Federal Due Process rights . . . of license holders by failing to
    provide a fair, neutral and impartial Hearing Officer.” In
    addition, “the APS system unconstitutionally allows DMV
    managers, executives, and/or administrators ex parte
    communications with the Hearing Officers and direct control over
    the decision-making process.” CDLA asserted that “[t]hese
    procedures and practices are unconstitutional on their face and
    as applied.”
    CDLA alleged that according to DMV written materials,
    the hearing officer at each APS hearing acts as investigator,
    advocate for DMV, and factfinder. CDLA’s complaint noted that
    California’s Administrative Procedure Act (APA) (Gov. Code,
    § 11340 et seq.) states that a person may not serve as a presiding
    officer in an adjudicative proceeding where “[t]he person has
    served as investigator, prosecutor, or advocate in the proceeding
    or its preadjudicative stage,” or “[t]he person is subject to the
    authority, direction, or discretion of a person who has served as
    4
    investigator, prosecutor, or advocate in the proceeding or its
    preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1) &
    (2).) However, the Vehicle Code “specifically exempts the APS
    adjudicative hearings from the prophylactic separation of
    functions mechanism set forth in the APA.” CDLA also alleged
    that hearing officers’ “initial . . . decision to set aside a
    suspension is subject to ex parte review, criticism, and unilateral
    reversal” by DMV management, “prior to it being issued to the
    licensee, without notice or input from the licensee.”
    CDLA stated that it is “a non-profit association of
    California lawyers who defend those accused of driving under the
    influence.” It alleged that its members “reside, practice, and pay
    property taxes in Los Angeles County and throughout the State
    of California.” Individual plaintiff Mandell is a licensed attorney,
    not a member of CDLA, who also paid property taxes in Los
    Angeles County.
    CDLA asserted three causes of action: violation of 
    42 U.S.C. § 1983
     (section 1983) affecting due process rights under the
    Fourteenth Amendment to the United States Constitution,
    violation of due process rights under California Constitution
    Article I, Section 7, and “illegal expenditure of funds.” CDLA
    sought declaratory and injunctive relief, costs, and attorney fees.
    C.     CDLA’s motion for summary judgment
    CDLA and DMV each moved for summary judgment. We
    address CDLA’s motion first.
    CDLA asserted that DMV had admitted the following facts
    in discovery: APS hearings are “adversarial” and “adjudicative”;
    the hearing officer’s role at an APS hearing is “trier of fact as well
    as an advocate for the department and driver safety”; and a
    hearing officer’s APS decision is subject to review by a manager,
    5
    and subject to alteration by that manager, without notice to a
    driver or the driver’s attorney.
    CDLA argued that continued possession of a driver’s
    license was a fundamental property right that could not be
    suspended or revoked without due process protections. It
    asserted that the combination of advocate and adjudication roles
    in a single, subordinate DMV employee violated required due
    process protections. CDLA pointed to the provision of the APA
    that bars a person from serving as a presiding officer in an
    adjudicative proceeding if that person “has served as
    investigator, prosecutor, or advocate in the proceeding or its
    preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1).)
    CDLA noted that Vehicle Code section 14112, subdivision (b),
    specifically exempts APS hearings from this requirement:
    “Subdivision (a) of Section 11425.30 of the Government Code does
    not apply to a proceeding for issuance, denial, revocation, or
    suspension of a driver’s license pursuant to this division.” (Veh.
    Code, § 14112, subd. (b).)
    CDLA argued, “Exceeding their statutory license under
    Veh. C. § 14112(b), and their constitutional obligations, DMV has
    designed and implemented the current APS system where the
    presiding Driver Safety Hearing Officer is (1) subordinate to the
    ex parte command influence of the Department and (2) acts as
    both adjudicator and advocate for the Department.” CDLA
    argued that these procedures were constitutionally inadequate as
    applied, and “[i]f the Department responds that this system is
    what the Legislature mandated or is the only one they can
    devise[,] then the statutory exemption is constitutionally infirm
    on its face.”
    6
    With its motion, CDLA submitted evidence including
    DMV’s Driver Safety Manual (which CDLA characterized as “an
    important reference tool for the Drive[r] Safety Hearing Officers
    in the conduct of their jobs”); an article in which DMV describes
    the APS system; legislative history for the APA statutory scheme;
    excerpts of deposition transcripts of two DMV employees; and the
    DMV’s responses to written discovery requests.
    D.     The DMV’s motion for summary judgment
    In its motion for summary judgment, DMV asserted that
    the first cause of action based on section 1983 and the second
    cause of action based on the California Constitution failed
    because CDLA was not directly affected by the APS system and
    therefore lacked standing to challenge it. DMV also contended
    that with respect to all three causes of action, CDLA could not
    assert taxpayer standing because the challenged conduct
    complied with the Vehicle Code and was therefore legal, and
    CDLA’s disagreement with the manner in which DMV chose to
    apply the law could not provide a basis for taxpayer standing.
    DMV also sought summary judgment or summary
    adjudication on the merits for each cause of action. It argued that
    the section 1983 cause of action lacked merit because the dual
    rules of APS hearing officers as advocate and trier of fact did not
    violate drivers’ procedural due process rights. DMV also asserted
    that drivers’ due process rights were protected because drivers
    whose licenses were suspended or revoked could petition for writs
    of mandate in superior court. DMV further argued that a section
    1983 claim could not be brought against a state entity, and
    Shiomoto, as Director of that agency, was immune from liability.
    In addition, DMV asserted that the second cause of action based
    on the California Constitution failed because such claims could
    7
    not be asserted as freestanding causes of action. The DMV
    contended the third cause of action for illegal expenditure of
    funds failed because the DMV had a “legitimate business interest
    in managing its hearing officer employees.”
    The DMV submitted evidence with its motion, including
    written discovery requests to CDLA and Mandell; CDLA’s and
    Mandell’s responses to the discovery requests, and excerpts from
    the depositions of Mandell and CDLA representative Chad
    Maddox. This evidence focused on standing-related issues.
    E.     The parties’ oppositions to the motions for summary
    judgment
    The parties opposed each others’ motions. DMV argued
    that CDLA’s motion and separate statement were procedurally
    deficient. It also argued that CDLA lacked standing for the same
    reasons asserted in the DMV’s motion for summary judgment.
    DMV also repeated its arguments that the APS hearing process
    did not violate due process requirements, and therefore the cause
    of action under section 1983 failed. DMV asserted that CDLA
    filed to submit any evidence of actual bias, and its “claim of
    actual bias is supported by largely inadmissible, irrelevant, and
    mischaracterized evidence.” DMV also contended that
    communications between hearing officers and DMV managers did
    not constitute impermissible ex parte communications. DMV
    repeated arguments from its motion that due process is provided
    through judicial review, the section 1983 claims could not be
    asserted against a state entity or Shiomoto, the claim based on
    the California Constitution was improper, and that DMV had a
    legitimate business interest in managing its employees.
    DMV submitted evidence in support of its opposition,
    including excerpts from the deposition of Brian Dawson, a
    8
    regional manager for DMV. Dawson said that managers do not
    “typically” review hearing officers’ work before their decisions are
    mailed, but if a hearing officer was having trouble reaching a
    decision the officer might meet with a manager to discuss the
    case. Dawson’s office once had a policy of reviewing all “set
    asides”—decisions in which the hearing officer set aside the
    suspension instead of affirming it. DMV also submitted excerpts
    from the deposition of DMV hearing officer Cecelia Bethel, who
    testified that hearing officers review evidence to determine
    whether the paperwork alone is sufficient or whether it is
    necessary to subpoena the arresting officer. Another witness,
    hearing officer Patrice Sims, testified that managers do not tell
    hearing officers how to decide cases.
    CDLA’s opposition to DMV’s motion repeated the
    arguments in CDLA’s motion that the procedures of APS
    hearings violated due process protections and were
    unconstitutional, both facially and as applied. CDLA asserted
    that subsequent judicial review did not “negate the constitutional
    mandate to provide due process in the first instance.” CDLA
    asserted that it had standing as a group of taxpayers and as a
    real party in interest. CDLA also argued that Shiomoto was not
    immune from liability under section 1983, and that the California
    Constitution supported the claim for injunctive and declaratory
    relief. Finally, CLDA asserted that DMV’s interest in managing
    its employees did not override its duty to provide due process
    protections to drivers facing APS hearings.
    CDLA submitted several deposition excerpts with its
    opposition. For example, CDLA submitted excerpts from the
    deposition testimony of DMV hearing officer Patrice Sims, who
    recalled one hearing in which she found the police officer’s
    9
    testimony regarding probable cause to be not credible. She set
    aside the driver’s suspension on that basis, but before the
    decision was sent to the driver, Sims’s supervisors required her to
    change her decision to affirm the suspension. When Sims
    protested that she did not agree with the amended result, she
    was punished in that she was written up, sent to repeat the
    training in Sacramento required of all new hearing officers,
    placed on probationary status, and she lost status and
    advancement opportunities within DMV. CDLA also submitted
    excerpts from the deposition of DMV hearing officer Cecelia
    Bethel, who testified that in APS hearings, drivers have the
    burden of proof: “He [the driver] asked for the hearing,” so
    “[t]hat’s his burden to show the suspension is not warranted.”
    Bethel also said that when she continued a hearing for good
    cause to allow the defense to present additional evidence, her
    supervisor told her that continuances were not allowed. Bethel
    recalled that she was reprimanded regarding the continuances.
    Bethel also said she had worked at DMV offices “where managers
    said no set asides.” A third hearing officer, Joanne Serna,
    testified that the hearing officer prepares DMV’s case, and if the
    driver rebuts the evidence presented by DMV, the hearing officer
    grants DMV a continuance to gather additional evidence. Serna
    said requests for continuances and additional evidence are often
    denied, and supervisors tell her that suspensions can be
    sustained without the additional evidence. Serna was written up
    for having too many set asides; the write-up letter compares her
    rates to “the office average,” advises Serna to review her cases
    more thoroughly, and suggests that if “this problem is due to
    outside distractions,” the employee assistance program is
    10
    available. Each of these hearing officers testified that the
    hearing officer’s role is both advocate for the DMV and factfinder.
    The parties each filed replies. The DMV also objected to
    portions of the evidence CDLA filed with its motion and
    opposition.
    F.     Hearing and court ruling
    The court issued a written tentative ruling stating that it
    was inclined to grant DMV’s motion and deny CDLA’s motion on
    the basis that CDLA lacked standing.
    The court stated that CLDA did not have standing to assert
    the first and second causes of action as real parties in interest
    because it was not alleging that its (or its members’) due process
    rights were directly violated. It noted that CDLA alleged in its
    complaint that its members are required to spend more time and
    money as a result of the unfairness of the APS system, and
    stated, “the DMV has shifted the burden of proof to the plaintiffs
    on this issue and the plaintiffs have submitted no evidence to
    support the allegation.”
    The court held that CDLA did not have taxpayer standing
    to assert the third cause of action for illegal expenditure of funds
    under Code of Civil Procedure section 526a (section 526a). That
    section allows a taxpayer to bring an action to challenge “any
    illegal expenditure” or “waste” of government funds. The court
    noted that a “cause of action under Code of Civil Procedure
    section 526a will not lie where the challenged governmental
    conduct is legal.” (Coshow v. City of Escondido (2005) 
    132 Cal.App.4th 687
    , 714 (Coshow).)
    The court reasoned that the statutes governing the APS
    procedure did not require that a hearing office be both advocate
    and trier of fact. The court said, “Plaintiffs’ challenge is not to
    11
    the legality of the statutes themselves, but rather, to the manner
    in which DMV implements the statutory scheme. . . . [A] taxpayer
    does not have standing to challenge the manner in which a
    governmental body implements an otherwise valid statute.” The
    court also stated, “It is possible that the manner in which DMV is
    implementing the statute violates due process of law. But it is
    the manner in which DMV is implementing it, rather than the
    statute itself, that arguably violates the law. Taxpayers do not
    have standing to challenge the manner of implementation, which
    is what the plaintiffs are attempting to do here.”
    The court concluded that because CDLA did not have
    standing, DMV’s motion for summary judgment should be
    granted. The court held that in light of its ruling on DMV’s
    motion, CDLA’s motion for summary judgment was denied
    because CDLA lacked standing.
    CDLA moved for a new trial, arguing that the court’s
    standing ruling was erroneous. The DMV opposed the motion.
    The court denied the motion, and judgment was entered in favor
    of DMV. CDLA timely appealed.
    DISCUSSION
    A.    Standing under section 526a
    The trial court held that CDLA had neither taxpayer
    standing under section 526a, nor standing as a real party in
    interest. CDLA does not challenge the court’s finding regarding
    real-party-in-interest standing, and asserts that only taxpayer
    standing is relevant on appeal. DMV also acknowledges that
    only taxpayer standing is relevant. We therefore address only
    taxpayer standing.1
    1The trial court did not address the question of taxpayer
    standing with respect to the first or second causes of action.
    12
    Section 526a states in relevant part, “An action to obtain a
    judgment, restraining and preventing any illegal expenditure of,
    waste of, or injury to, the estate, funds, or other property of a
    county, town, city or city and county of the state, may be
    maintained against any officer thereof, or any agent, or other
    person, acting in its behalf, either by a citizen resident therein, or
    by a corporation, who is assessed for and is liable to pay, or,
    within one year before the commencement of the action, has paid,
    a tax therein.”
    “However strict the concept of standing may be in other
    contexts, it has been considerably relaxed by section 526a.”
    (Chiatello v. City and County of San Francisco (2010) 
    189 Cal.App.4th 472
    , 481 (Chiatello).) “This relaxation is a
    consequence of the salutary goal of section 526a: ‘The primary
    purpose of this statute, originally enacted in 1909, is to “enable a
    large body of the citizenry to challenge governmental action
    which would otherwise go unchallenged in the courts because of
    the standing requirement.” [Citation.] [¶] California courts have
    consistently construed section 526a liberally to achieve this
    remedial purpose.’” (Ibid.)
    “Both standing and the interpretation of statutes are
    questions of law to which we typically apply a de novo standard
    of review.” (San Luis Rey Racing, Inc. v. California Horse Racing
    Board (2017) 
    15 Cal.App.5th 67
    , 73.) Here, the facts relevant to
    taxpayer standing are not in dispute, and therefore we consider
    the issue de novo.
    Nonetheless, we may consider the issue for the first time on
    appeal. (See, e.g., Steadman v. Osborne (2009) 
    178 Cal.App.4th 950
    , 954-955 [“It is well settled that a party may raise the issue
    of standing for the first time on appeal.”].)
    13
    DMV challenges CDLA’s standing under 526a on two bases:
    CDLA has not demonstrated an “illegal expenditure” or “waste”
    under the statute, and the hearing procedure would not
    “otherwise go unchallenged” in the absence of this taxpayer
    action. We address the waste issue first.
    1.    Illegal expenditures or waste
    Case law has made clear that “waste” does not encompass
    discretionary governmental action. “[A] taxpayer is not entitled
    to injunctive relief under Code of Civil Procedure section 526a
    where the real issue is a disagreement with the manner in which
    government has chosen to address a problem.” (Coshow, supra,
    132 Cal.App.4th at p. 714.) Thus, “the term ‘waste’ as used in
    section 526a means something more than an alleged mistake by
    public officials in matters involving the exercise of judgment or
    wide discretion.” (Sundance v. Municipal Court (1986) 
    42 Cal.3d 1101
    , 1138.)
    DMV argues that taxpayer standing is lacking because “the
    Vehicle Code requires that the APS hearing officer be a DMV
    employee, and the DMV has discretion in how it applies Vehicle
    Code section 14112, subdivision (b) to the officer role.”2 CDLA
    asserts that it is challenging “a hearing structure that by its very
    2 Vehicle Code section 14104.2, subdivision (a) states, “Any
    hearing shall be conducted by the director or by a hearing officer
    or hearing board appointed by him or her from officers or
    employees of the department.” Vehicle Code section 14112,
    subdivision (b) states, “Subdivision (a) of Section 11425.30 of the
    Government Code does not apply to a proceeding for issuance,
    denial, revocation, or suspension of a driver's license pursuant to
    this division.” Government Code section 11425.30, subdivision (a)
    is the APA provision stating that anyone serving as an
    investigator may not also act as a presiding officer in a hearing.
    14
    nature violates drivers’ due process rights, which no
    governmental agency has discretion to do.” Indeed, “it is
    unquestionably waste for government to budget or spend money
    administering an illegal ordinance.”
    If the APS system violates drivers’ due process rights, as
    CDLA alleges, it is illegal and a waste under section 526a. “A
    driver’s license cannot be suspended without due process of law.”
    (Cinquegrani v. Department of Motor Vehicles (2008) 
    163 Cal.App.4th 741
    , 750; see also Petrus, supra, 194 Cal.App.4th at
    p. 1244; see also Nightlife Partners v. City of Beverly Hills (2003)
    
    108 Cal.App.4th 81
    , 90 (Nightlife Partners) [“The protections of
    procedural due process apply to administrative proceedings . . . ;
    the question is simply what process is due in a given
    circumstance.”].) “‘The essence of due process is the requirement
    that “a person in jeopardy of serious loss [be given] notice of the
    case against him and opportunity to meet it.”’ [Citations.] The
    opportunity to be heard must be afforded ‘at a meaningful time
    and in a meaningful manner.’ [Citations.] To ensure that the
    opportunity is meaningful, the United States Supreme Court and
    [the California Supreme Court] have identified some aspects of
    due process as irreducible minimums. For example, whenever
    ‘due process requires a hearing, the adjudicator must be
    impartial.’” (Today’s Fresh Start, Inc. v. Los Angeles County
    Office of Educ. (2013) 
    57 Cal.4th 197
    , 212.) In other words, “Due
    process . . . always requires a relatively level playing field, the
    ‘constitutional floor’ of a ‘fair trial in a fair tribunal,’ [is] a fair
    hearing before a neutral or unbiased decision-maker.” (Nightlife
    Partners, supra, 
    108 Cal.App.4th 81
    , 90 (emphasis in original).)
    Due process guarantees apply to the APS system with
    respect to drivers’ license suspensions. (See, e.g., Hall v. Superior
    15
    Court (2016) 
    3 Cal.App.5th 792
    , 808-809 [“ ‘[T]he constitutional
    guarantee of due process of law requires a fair tribunal’” for an
    APS hearing.].) In other contexts, courts have found that lack of a
    neutral factfinder or ex parte communications between the
    decision-maker and other agency employees may render an
    administrative hearing unfair. (See, e.g., Department of Alcoholic
    Beverage Control v. Alcoholic Beverage Control Appeals Bd.
    (2006) 
    40 Cal.4th 1
    , 10 [“Procedural fairness does not mandate
    the dissolution of unitary agencies, but it does require some
    internal separation between advocates and decision makers to
    preserve neutrality”]; Howitt v. Superior Court (1992) 
    3 Cal.App.4th 1575
    , 1585 [in an employment appeal involving a
    deputy sheriff, combining advocacy and decision-making roles “is
    inconsistent with true objectivity, a constitutionally necessary
    characteristic of an adjudicator”]; Rondon v. Alcoholic Beverage
    Control Appeals Bd. (2007) 
    151 Cal.App.4th 1274
    , 1289 [decision-
    makers’ practice of reviewing hearing reports prepared by
    prosecuting attorneys after the hearing but before issuing final
    decisions violated the APA’s prohibitions against ex parte
    communications and use of extra-record information]; Nightlife
    Partners, supra, 108 Cal.App.4th at p. 94 [city attorney’s “role as
    advisor to the decision-maker” regarding denial of the plaintiff’s
    regulatory permit “violated petitioners’ right to due process”
    because the attorney “acted as both an advocate of City’s position
    and as advisor to the supposedly neutral decision-maker”].)
    DMV acknowledged in discovery that DMV is a party to an
    APS hearing, the hearing is adversarial, and the hearing officer’s
    role involves both advocating on behalf of DMV and acting as
    factfinder. CDLA asserts that this violates the irreducible
    minimums of procedural due process, and is therefore illegal.
    16
    CDLA has thus asserted a claim of waste that fits the parameters
    of section 526a.
    DMV argues that CDLA does not have standing because
    the APS system is “legal.” It asserts that “DMV hearing officer’s
    role as decisionmaker and advocate is authorized by both statute
    and case law,” and therefore taxpayer standing is unavailable.
    CDLA counters that this argument is circular: “The DMV is
    arguing that CDLA has standing to challenge the DMV for due
    process violation, illegality, or wastefulness, only if it first proves
    that the DMV violates due process, acts illegally, or is wasteful.
    The circularity of that reasoning condemns itself.”
    We agree with CDLA: the DMV’s argument that the
    allegedly unconstitutional action is “legal” seeks to limit
    standing—a threshold issue—based on a substantive
    determination of the ultimate issue in this case. “‘The
    fundamental aspect of standing is that it focuses on the party
    seeking to get his complaint before a . . . court and not on the
    issues he wishes to have adjudicated.’” (Harman v. City and
    County of San Francisco (1972) 
    7 Cal.3d 150
    , 159.)
    Cases that challenge the legality or constitutionality of
    governmental actions fall squarely within the purview of section
    526a. In Blair v. Pitchess (1971) 
    5 Cal.3d 258
    , for example, the
    Supreme Court considered the constitutionality of “California’s
    claim and delivery law”—a series of statutes allowing a plaintiff
    to have a sheriff seize property from a defendant before any
    adjudication of the issues between the parties. (Id. at p. 265-
    266.) Plaintiff taxpayers filed an action against Los Angeles
    County and others, alleging that the claim and delivery law was
    unconstitutional. The defendants asserted that the plaintiffs
    lacked standing, but the court rejected this argument: “It is clear
    17
    that the present action was properly brought under section 526a.
    Plaintiffs have alleged, and by their affidavits have established,
    that they are residents and taxpayers of the County of Los
    Angeles. . . . If the claim and delivery law is unconstitutional,
    then county officials may be enjoined from spending their time
    carrying out its provisions.” (Id. at p. 269.)
    County of Santa Clara v. Superior Court (2009) 
    171 Cal.App.4th 119
     presents another example in which section 526a
    standing was appropriate to challenge the legality of government
    actions. In that case, the plaintiffs alleged that the government
    entity defendants mishandled “requests for specifically described
    types of public records.” (Id. at p. 124.) The plaintiffs alleged
    that the defendants’ “‘policies and practices are illegal, in that
    they do not comply with state law regarding access to public
    records, including but not limited to, the California Public
    Records Act (‘CPRA’), Health and Safety Code section 11495,
    Government Code section 12525, and the Political Reform Act.’”
    (Ibid.) The court held standing under section 526a was
    appropriate to challenge the government’s actions: “The purpose
    of the CPRA is furthered, not obstructed, by citizen suits under
    Code of Civil Procedure section 526a to enforce the CPRA’s
    provisions.” (Id. at p. 130; see also Hector F. v. El Centro
    Elementary School District (2014) 
    227 Cal.App.4th 331
    , 342 (“The
    public interest in enforcing [California] antidiscrimination and
    antiharassment statutes also provides . . . standing to bring a
    taxpayer action under Code of Civil Procedure section 526a.”].)
    DMV’s position that CDLA lacks standing because the
    DMV’s actions are “legal” is based on cases that are factually
    inapposite. For example, DMV cites Lyons v. Santa Barbara
    County Sheriff’s Office (2014) 
    231 Cal.App.4th 1499
     (Lyons), in
    18
    which the plaintiff was evicted from her home following a
    nonjudicial foreclosure. The plaintiff then sued the local sheriff’s
    department, the county recorder, and various employees of those
    entities, asserting that they unlawfully participated in the
    foreclosure process. In holding that defendants’ demurrer was
    properly sustained, the Court of Appeal said the complaint was “a
    misguided section 526a collateral attack on the unlawful detainer
    judgment,” and the plaintiff did not have taxpayer standing
    under section 526a. The Court of Appeal agreed with the trial
    court’s assessment that “‘the [recorder’s] office is under a
    mandatory duty to accept the paperwork that’s filed with it. It
    has no independent duty to determine whether or not that
    paperwork is fraudulent. Moreover, when the sheriff serves a
    writ of execution that’s by order of the court. The sheriff has no
    discretion to refuse to serve that order.’” (Id. at p. 1502.) The
    court noted, “A taxpayer action does not lie where the challenged
    governmental conduct is legal.” (Id. at p. 1503.)
    DMV also cites Lucas v. Santa Maria Public Airport Dist.
    (1995) 
    39 Cal.App.4th 1017
     (Lucas), in which the plaintiff alleged
    that the defendant “entered into an employment contract with its
    general manager.” (Id. at p. 1021.) The plaintiff conceded that
    the manager’s contract was legal, and the court noted that in
    general, a section 526a action may not be used to challenge
    discretionary actions. (Id. at p. 1027.) The court held that the
    plaintiff’s section 526a action was inappropriate, because the
    specifics of the legal contract were properly within the defendant
    agency’s control: “This is a decision which lies within the sound
    discretion of the agency, pursuant to statutory authority. We
    may not disturb it.” (Ibid.)
    19
    DMV argues, “Here, like the challenged governmental
    conduct in Lyons and Lucas, the DMV hearing officer’s dual role
    as judge and proponent of DMV’s evidence complies with statute
    and case law.”3 But this case is unlike Lyons and Lucas, in that
    the plaintiffs in those cases did not challenge the legality or
    constitutionality of the laws that governed the governmental
    actions at issue. Here, DMV’s argument that it complied with
    the relevant Vehicle Code sections does nothing to address
    CDLA’s allegation that those Vehicle Code sections are
    unconstitutional, either facially or as applied.4
    CDLA’s standing is therefore not undermined by the DMV’s
    assertion that its actions are “legal.” The trial court’s conclusion
    that CDLA lacked standing because the APS hearing system
    complied with the laws that CDLA challenges was erroneous.
    3  The trial court cited Coshow, supra, 
    132 Cal.App.4th 687
    ,
    in holding that plaintiff did not have standing under section
    526a. In fact, the court in Coshow did not consider standing:
    “[B]ecause we address the merits of Coshow’s constitutional
    challenge, we need not decide the issue of standing.” (Id. at p.
    703, fn. 4.)
    4 Although the trial court interpreted CDLA’s allegations as
    an as-applied challenge only, CDLA has made clear that it is
    asserting both facial and as-applied challenges. Moreover, the
    trial court’s distinction between a facial and as-applied
    challenges does not appear to be supported by case law relevant
    to section 526a taxpayer standing, although that distinction may
    be relevant in other contexts. (See, e.g., People v. Navarro (2013)
    
    212 Cal.App.4th 1336
    , 1350 n. 12 [“a party who fails to
    demonstrate that the statute is unconstitutional as applied to the
    party or to persuade the court of the merits of a facial challenge,
    ‘has no “standing” to allege that, as applied to others, the statute
    might be unconstitutional.’”].)
    20
    2.    Other potential plaintiffs
    DMV also argues that CDLA did not have standing under
    section 526a because DMV’s actions “would not otherwise go
    unchallenged in the absence of taxpayer actions.” DMV asserts
    that “the Legislature has crafted mechanisms for drivers to
    challenge the results of DMV’s APS hearings,” such as seeking
    judicial review of DMV actions, and “[b]ecause there are ready
    avenues other than a taxpayer suit to challenge the statutory
    scheme at issue here, [CDLA does] not have standing.”
    This reasoning was rejected decades ago by the Supreme
    Court. “[T]he existence of individuals directly affected by the
    challenged governmental action . . . has not been held to preclude
    a taxpayers’ suit. Numerous decisions have affirmed a taxpayer’s
    standing to sue despite the existence of potential plaintiffs who
    might also have had standing to challenge the subject actions or
    statutes.” (Van Atta v. Scott (1980) 
    27 Cal.3d 424
    , 447-448.)
    Moreover, the Court in Blair v. Pitchess, supra, held that limiting
    standing under section 526a by requiring only actions involving
    parties with individual interests would undermine the purpose of
    section 526a: “[T]he primary purpose of section 526a was to give
    a large body of citizens standing to challenge governmental
    actions. If we were to hold that such suits did not present a true
    case or controversy unless the plaintiff and the defendant each
    had a special, personal interest in the outcome, we would
    drastically curtail their usefulness as a check on illegal
    government activity.” (Blair v. Pitchess, supra, 5 Cal.3d at p.
    269.)
    DMV relies on Animal Legal Defense Fund v. California
    Exposition and State Fairs (2015) 
    239 Cal.App.4th 1286
     (ALDF),
    in which the plaintiffs attempted to bring a section 526a action,
    21
    alleging that the defendant state agency violated animal cruelty
    laws by transporting pregnant pigs to state fairs and confining
    them in fairground displays. (Id. at pp. 1291-1292.) In a
    demurrer, the defendants challenged whether the plaintiffs could
    assert a claim under section 526a; the demurrer was sustained.
    The Court of Appeal affirmed. It noted that a previous case held
    there was no private right of action under the animal cruelty
    statutes the plaintiffs asserted the defendants violated: “[T]he
    [Animal Legal Defense Fund v. Mendes (2008) 
    160 Cal.App.4th 136
    ] court concluded that recognition of a private right of action
    under [Penal Code] section 597t would be inconsistent with the
    Legislature’s entrustment of enforcement of anticruelty laws to
    local authorities and humane societies.” (Id. at p. 1297.) The
    court noted that California had a detailed legislative scheme
    regarding animal cruelty and enforcement of animal cruelty laws,
    and concluded, “Given this detailed legislative scheme, we believe
    the Legislature intended the enforcement mechanisms it
    established—and the entities in whom it entrusted such
    enforcement—to be the exclusive mechanisms for, and entities
    charged with, such enforcement. Put otherwise, the more general
    remedy of a taxpayer action was not intended to be used in their
    stead.” (Id. at p. 1301.)
    ALDF is not applicable here. The “statutory scheme” by
    which individuals’ procedural due process rights are protected
    consists of the United States and California Constitutions, and
    the related statutes and case law interpreting and applying those
    provisions. Procedural due process rights do not have a specific
    statutory scheme and enforcement provisions similar to
    California’s animal cruelty laws. CDLA has asserted those rights
    22
    here, and an action under section 526a is an appropriate means
    to do so.
    3.   Common law standing
    CDLA also contends that it has taxpayer standing under
    the common law. “[C]ommon law authority for taxpayer suits
    [states] that a ‘taxpayer in his representative capacity can sue a
    municipality only in cases involving fraud, collusion, ultra vires,
    or a failure on the part of the governmental body to perform a duty
    specifically enjoined.’” (Los Altos Property Owners Assn. v.
    Hutcheon (1977) 
    69 Cal.App.3d 22
    , 26.) “[A] governmental
    agency that acts outside of the scope of its statutory authority
    acts ultra vires and the act is void.” (Lamere v. Superior Court
    (2005) 
    131 Cal.App.4th 1059
    , 1066 fn. 4.)
    CDLA asserts that if “the DMV hearing structure is
    unlawful, its operation is ultra vires, giving rise to common law
    taxpayer standing.” DMV counters that it “complied with
    applicable law” and therefore its actions were not ultra vires. As
    we discussed above, a determination of standing—a threshold
    issue—does not rely on a determination of the ultimate issues to
    be determined in the case. Because CDLA has challenged the
    APS system as unconstitutional and therefore ultra vires, CDLA
    has common law taxpayer standing to assert these claims.
    Because CDLA had standing under section 526a and
    common law taxpayer standing, the trial court’s holding that
    CDLA lacked standing was erroneous.
    B.     Cross motions for summary judgment
    CDLA asserts that if we find it had standing, we should
    proceed to decide the merits of the motions for summary
    judgment, grant CDLA’s motion, and deny DMV’s motion. DMV
    asserts that the scope of appellate review should be limited to
    23
    standing, and if we find that CDLA has standing, we should
    remand the case to the trial court for further proceedings.
    “A litigant’s standing to sue is a threshold issue to be
    resolved before the matter can be reached on its merits.”
    (Apartment Ass’n of Los Angeles County, Inc. v. City of Los
    Angeles (2006) 
    136 Cal.App.4th 119
    , 128.) Here, the trial court
    decided only the threshold issue of standing. This appeal reaches
    us following cross-motions for summary judgment, in which the
    parties submitted evidence in support of their respective motions
    (including evidence of the combined advocate/factfinder roles of
    DMV hearing officers and evidence of substantial ex parte
    communications affecting the outcome of APS hearings).
    However, the trial court did not reach the merits of CDLA’s
    claims.
    In addition, the trial court did not reach evidentiary issues
    that typically guide the scope of appellate review. “Under the
    summary judgment statute, we examine the evidence submitted
    in connection with the summary judgment motion, with the
    exception of evidence to which objections have been appropriately
    sustained.” (Paslay v. State Farm General Insurance Company
    (2016) 
    248 Cal.App.4th 639
    , 644.) Here, DMV filed objections to
    CDLA’s evidence with its opposition and reply. It appears that
    the trial court did not rule on these objections.
    Without the benefit of decisions from the trial court
    regarding the merits of the motions or the parties’ objections, we
    decline to consider the parties’ motions for summary judgment on
    appeal in the first instance.5 We express no opinion on the issues
    that remain for determination.
    5 CDLA requested that we judicially notice the legislative
    history for Vehicle Code section 14112, subdivision (b), in relation
    24
    DISPOSITION
    The judgment is reversed. On remand, the trial court shall
    vacate the orders granting DMV’s motion for summary judgment
    and denying CDLA’s motion for summary judgment. CDLA is
    entitled to costs on appeal.
    CERTIFIED FOR PUBLICATION
    COLLINS, J.
    We concur:
    EPSTEIN, P. J.
    MANELLA, J.
    to the substantive arguments in its motion for summary
    judgment. Because we are not considering the merits of CDLA’s
    motion, the documents are not relevant to the issues herein. We
    therefore deny CDLA’s request.
    25
    

Document Info

Docket Number: B278092

Filed Date: 3/2/2018

Precedential Status: Precedential

Modified Date: 3/2/2018