California DUI Lawyers Assn. v. Cal. Dept. of Motor Vehicles ( 2022 )

Filed 4/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CALIFORNIA DUI LAWYERS B305604
ASSOCATION et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
BC553552)
v.
CALIFORNIA DEPARTMENT
OF MOTOR VEHICLES et al.,
Defendants and Respondents.
________________________________
CALIFORNIA DUI LAWYERS B309145
ASSOCIATION et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No.
BC553552)
v.
CALIFORNIA DEPARTMENT
OF MOTOR VEHICLES et al.,
Defendants and Appellants.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Holly J. Fujie, Judge. Judgment
affirmed in part and reversed in part. Order affirmed and
remanded with instructions.
Law Offices of Robert S. Gerstein, Robert S. Gerstein; Law
Office of Joshua C. Needle, Joshua C. Needle; Carlton Fields,
Ellyn S. Garofalo and Amir Kaltgrad for California DUI Lawyers
Association and Steven R. Mandell.
Attorney General of California, Rob Bonta; Senior
Assistant Attorney General, Chris A. Knudsen; Supervising
Deputy Attorney General, Gary S. Balekjian; and Deputy
Attorney General, Jacqueline H. Chern for California
Department of Motor Vehicles and Steve Gordon.
_______________________________________
INTRODUCTION
The Department of Motor Vehicles (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. At these hearings,
the DMV mandates that the hearing officers simultaneously act
as advocates for the DMV and as triers of fact. The DMV also
authorizes its managers to change hearing officers’ decisions, or
order the hearing officers to change their decisions, without
notice to the driver.
Based on these practices, the California DUI Lawyers
Association and attorney Steven R. Mandell (collectively, CDLA)
sued the DMV and its director1 for injunctive and declaratory
relief. CDLA alleged three cause of action: (1) violation of 42
United States Code section 1983 affecting due process rights
under the Fourteenth Amendment to the United States
Constitution (section 1983); (2) violation of due process rights
under article I, section 7 of the California Constitution (state due
process); and (3) “illegal expenditure of funds” under Code of Civil
Procedure section 526a (section 526a). CDLA alleged that both
1 Jean Shiomoto was the director of the DMV at the time
CDLA filed its complaint. The director is currently Steven
Gordon.
2
the lack of a neutral hearing officer, and the ex parte
communications between DMV managers and hearing officers,
violate drivers’ rights to procedural due process under the
California and United States Constitutions.
CDLA and the DMV each moved for summary judgment, or
in the alternative, summary adjudication. The trial court (Hon.
Rita Miller, presiding) held CDLA did not have taxpayer
standing to assert its claims. The trial court granted the DMV’s
motion for summary judgment on that basis, and denied
CDLA’s motion for summary judgment. In California DUI
Lawyers Assn. v. Department of Motor Vehicles (2018) 20
Cal.App.5th 1247 (CDLA I), this court reversed the judgment,
with instructions to vacate the orders granting the DMV’s
summary judgment motion and denying CDLA’s summary
judgment motion. (Id. at p. 1266.)
On remand, and after further briefing, the trial court (Hon.
Holly J. Fujie, presiding) addressed the merits of the parties’
motions. It denied both parties’ motions for summary judgment,
but (1) granted the DMV’s motion for summary adjudication of
CDLA’s first cause of action (section 1983); and (2) granted
CDLA’s motion for summary adjudication of its second (state due
process) and third (section 526a) causes of action. The trial court
concluded the DMV’s structural design allowing for ex parte
managerial interference with the hearing officers’ decision-
making violates due process under the California Constitution,
and thus constitutes waste under Code of Civil Procedure section
526a. The trial court also granted the DMV’s motion for summary
adjudication on the following issue: “As a matter of law, the DMV
hearing officer’s dual role as advocate for the DMV and trier of
fact does not violate due process.”
The trial court entered judgment in favor of the DMV on
the first cause of action (section 1983), and in favor of CDLA on
the second (state due process) and third (section 526a) causes of
action. The judgment enjoined the DMV from maintaining or
3
implementing a structure allowing managerial interference with
hearing officers’ decision-making through “ex parte
communications or command control.” It also found CDLA to be
the prevailing party for purposes of an award of attorneys’ fees.
In this consolidated2 appeal, CDLA appeals from the
judgment contending the trial court erred by: (1) granting the
DMV summary adjudication on the issue of whether a hearing
officer’s dual roles as advocate for the DMV and adjudicator
violates drivers’ due process rights; and (2) granting the DMV’s
motion for summary adjudication of CDLA’s first cause of action
under section 1983. The parties also both appeal from the post-
judgment award of attorneys’ fees.
For the reasons discussed below, we conclude, based on the
undisputed facts, CDLA was entitled to judgment as a matter of
law on each of its causes of action. CDLA is therefore entitled to
summary judgment. We further conclude the trial court’s
attorneys’ fee award did not constitute an abuse of discretion. In
light of CDLA’s additional success on appeal, however, we
remand the matter to the trial court to reevaluate the amount of
fees awarded to CDLA (but express no opinion whether the
amount should be increased), and to calculate the amount of fees
and costs CDLA incurred on appeal.
2 On February 18, 2021, we consolidated the appeals in
B305604 and B309145 for briefing, oral argument, and decision.
4
FACTUAL AND PROCEDURAL BACKGROUND
We borrow much of our description of the background from CDLA
I.
A. Statutory Background
“This action involves the ‘administrative per se’ or ‘APS’
system used to suspend a driver’s license following an arrest for
driving under the influence. ‘Under the administrative per se
law, the 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 the 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
5
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. 1537-1538, fn. omitted.) DMV bears the burden of proof.
(Petrus v. Department of Motor Vehicles (2011) 194 Cal.App.4th
1240, 1244 (Petrus).)” (CDLA I, supra, 20 Cal.App.5th at pp.
1251-1252.)
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 fact finder. 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
6
subject to the authority, direction, or discretion of a person who
has served as 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 [to] or input from the licensee.’”
(CDLA I, 20 Cal.App.5th at pp. 1252-1253.)
C. Summary Judgment Motions
As discussed above, both parties moved for summary
judgment, or in the alternative, summary adjudication. After
concluding CDLA had no standing, the trial court entered
judgment in favor of the DMV. In CDLA I, we reversed the
judgment, with instructions to vacate the orders granting the
DMV’s motion for summary judgment and denying CDLA’s
motion. (CDLA I, supra, 20 Cal.App.5th at p. 1266.)
On remand, the trial court vacated the previous orders on
the summary judgment motions, and directed the parties to file
new motions incorporating prior filings, along with supplemental
briefs. The parties complied, and filed additional briefing at the
request of the trial court.
In its motion, CDLA argued a driver’s license cannot be
suspended without due process of law, and the combination of
advocate and adjudication roles in a single, subordinate DMV
employee violates required due process protections.3 CDLA
3 Because the DMV does not appeal the trial court’s ruling
that ex parte communications between hearing officers and
managers violate drivers’ due process rights, we omit the parties’
arguments in their motions for summary judgment and
7
submitted evidence in support of its motion, including the DMV’s
Driver Safety Manual (DSM) and DMV’s responses to written
discovery. The DMV admitted the following facts in response to
CDLA’s requests for admission: (1) APS hearings are adversarial;
(2) the DSM accurately reflects the policies and practices of the
[DMV]; (3) the DSM defines the role of a hearing officer as “a
trier of fact as well as an advocate for the department and driver
safety”; (4) the DSM explains that in the hearing officer’s
capacity as a “trier of fact” he or she must “[h]ear, weigh, and
deliberate upon evidence” and “[m]ake findings and render a
decision relating to an issue of fact”; (5) the DSM explains that in
the hearing officer’s capacity as an “advocate” he or she must
“[a]ssist, defend, prepare and/or present DMV’s case” and
“[p]romote driver safety”; (6) the hearing officer neither has a
duty to assist the driver in preparing for the hearing, nor a duty
to present any evidence that would support the position of the
driver at the hearing; and (7) as “trier of fact” at APS hearings,
the hearing officer rules on the admissibility of the
documentation he or she offers as evidence as “advocate for the
[DMV]” in support of the DMV’s position at the APS hearing.
In its own motion and in opposition to CDLA’s motion, the
DMV argued CDLA failed to submit any evidence of actual bias
on the part of hearing officers. For example, CDLA’s person most
qualified testified at his deposition that CDLA is unaware of
situations where a hearing officer was reprimanded, suspended,
demoted, or otherwise disciplined for setting aside too many
license suspensions. The DMV also relied on the DSM’s
statement that hearing officers “must always be fair and
impartial to preserve the integrity of the hearing process.” The
DMV further argued CDLA’s section 1983 claim fails as a matter
of law because it cannot be brought against a state entity, and
oppositions (and discussion of evidence submitted in the trial
court) on this issue.
8
the DMV director is immune from liability under the doctrine of
qualified immunity.
After considering the parties’ written submissions and oral
argument, the trial court granted summary adjudication in favor
of the DMV on CDLA’s section 1983 cause of action, and in favor
of CDLA on its causes of action for violation of due process rights
under the California Constitution and illegal expenditure of
funds. With respect to the first cause of action (section 1983), the
trial court concluded the doctrine of qualified immunity did not
shield the director of the DMV from liability, but found in favor of
the director because there was “no evidence indicating that [the
director] ha[d] some personal involvement in the DMV APS
hearings.” With respect to the second (state due process) and
third (section 526a) causes of action, the trial court found the
“unilateral power of a DMV manager to change a hearing officer’s
decision without notice or a rehearing for [the driver]” is “a clear
violation of due process . . . .” The trial court found the hearing
officer’s dual role of advocate and trier of fact, however, was not a
violation of due process. It reasoned: “[T]he evidence presented by
[CDLA] does not lay the required foundation for finding that bias
or prejudice exists with respect to a hearing officer’s decision in
connection with an APS hearing.”
The trial court entered judgment in favor of CDLA on its
state due process and section 526a causes of action, and in favor
of the DMV on CDLA’s section 1983 cause of action. The
judgment permanently enjoined the DMV from “maintaining or
implementing a structure for Administrative Per Se hearings on
the suspension or revocation of a driver’s license that allows ex
parte communications or command control by DMV Driver Safety
Branch managers over Driver Safety Hearing Officers’ decisions,
including set asides or suspensions, before decisions are issued.”
9
D. Attorneys’ Fee Award
Following entry of judgment, CDLA moved for attorneys’
fees under Code of Civil Procedure section 1021.5. CDLA sought
fees in the amount $5,242,243 (based on a lodestar amount of
$2,621.121.50 and a multiplier of 2.0). The DMV opposed the
motion on several grounds, including that the requested fees
should be reduced because CDLA was only partially successful,
and the claimed hours were not reasonably spent.
The trial court reduced the hourly rates of several
attorneys, but declined to reduce the number of hours spent. The
trial court stated: “[T]o the extent that the Court has any issues
with the number of hours, that is reflected in its calculation of
the individual attorney’s billable rate.” It also declined to reduce
the fee award on the basis that CDLA was only partially
successful in the action. Thus, after denying CDLA’s request for a
lodestar multiplier of 2.0, the trial court awarded CDLA
attorneys’ fees in the amount of $2,123,591.
E. Appeals
CDLA appeals from the trial court’s judgment and
attorneys’ fee order. The DMV cross-appeals from the attorneys’
fee order.
DISCUSSION
I. CDLA’s Appeal from the Judgment
A. Standard of Review
A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff's cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
If the defendant meets this burden, the burden shifts to the
10
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.)
We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.)
B. Hearing Officers’ Dual Role as Advocate and
Adjudicator
1. Due Process Principles
Both the federal and state Constitutions compel the
government to afford people due process before depriving them of
any property interest. (U.S. Const., 14th Amend. [“nor shall any
State deprive any person of life, liberty, or property, without due
process of law”]; Cal. Const., art. I, § 7, subd. (a) [“A person may
not be deprived of life, liberty, or property without due process of
law . . .”].)
“‘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; Nightlife Partners, Ltd. 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. ’ (citation omitted)].) ‘“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
11
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
Education (2013) 57 Cal.4th 197, 212 [(Today’s Fresh Start)].) In
other words, ‘[d]ue 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 at
pp. 81, 90.)” (CDLA I, supra, 20 Cal.App.5th at p. 1259.)
In Today’s Fresh Start, our Supreme Court clarified the
standard applicable to prove a due process violation based on
overlapping functions of an administrative agency: “[T]he general
rule endorsed by both the United States Supreme Court and this
court is that ‘[b]y itself, the combination of investigative,
prosecutorial, and adjudicatory functions within a single
administrative agency does not create an unacceptable risk of
bias and thus does not violate the due process rights of
individuals who are subjected to agency prosecutions.’” (Today’s
Fresh Start, supra, 57 Cal.4th at p. 221.) Our Supreme Court
further explained: “To prove a due process violation based on
overlapping functions thus requires something more than proof
that an administrative agency has investigated and accused, and
will now adjudicate. ‘[T]he burden of establishing a disqualifying
interest rests on the party making the assertion.’ [Citation.] That
party must lay a ‘specific foundation’ for suspecting prejudice
that would render an agency unable to consider fairly the
evidence presented at the adjudicative hearing [citation]; it must
come forward with ‘specific evidence demonstrating actual bias or
a particular combination of circumstances creating an
unacceptable risk of bias’ [citations].” (Ibid.)
12
2. APS Hearing Officers’ Dual Roles as
Advocate and Adjudicator Creates An
Unacceptable Risk of Bias
CDLA contends the DMV’s APS hearing structure violates
the California and federal due process rights of drivers by
combining the advocacy and adjudicatory roles into a single DMV
employee. We agree.
The parties have not directed us to, and we have not
located, a case directly addressing the issue presented, i.e.,
whether the APS hearing officers’ dual roles of advocate and trier
of fact violates drivers’ due process rights. In other contexts,
however, courts have held procedural fairness requires some
internal separation between advocates and decision makers to
preserve neutrality.
For example, in Department of Alcoholic Beverage Control
v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1(Quintanar), the licensees challenged the Department’s practice
of having a Department prosecutor prepare a report of the
hearing, including a recommended outcome, and forwarding it to
the ultimate decisionmaker while a final Department decision
was still pending. (Id. at pp. 5-6.) In concluding the practice
violated the APA, our Supreme Court stated: “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.” (Id. at pp. 10-11.) It further
explained: “One fairness principle directs that in adjudicative
matters, one adversary should not be permitted to bend the ear of
the ultimate decision maker or the decision maker’s advisers in
private. Another directs that the functions of prosecution and
adjudication be kept separate, carried out by distinct
individuals.” (Id. at p. 5.)
Similarly, in Howitt v. Superior Court (1992) 3 Cal.App.4th
1575 (Howitt) the same county counsel’s office represented the
county against an employee in a grievance proceeding and
13
advised the quasi-independent adjudicatory body tasked with
deciding the grievance. (Id. at p. 1578.) The Court of Appeal
concluded this dual role was permissible, but only if a
screening procedure between prosecutors and advisers was
instituted. (Id. at p. 1586.) In so holding, the court explained that
overlapping functions within an administrative agency are
generally permissible absent specific evidence of bias. (Id. at p.
1580.) “A different issue is presented, however, where advocacy
and decisionmaking roles are combined. By definition, an
advocate is a partisan for a particular client or point of view. The
role is inconsistent with true objectivity, a constitutionally
necessary characteristic of an adjudicator.” (Id. at p. 1585.)
Finally, in Nightlife Partners, supra, 108 Cal.App.4th 81the same legal counsel represented the city in connection with a
business permit denial and then advised the third-party hearing
officer on administrative appeal from that denial. (Id. at p. 85.)
The court rejected the city’s argument that the hearing met due
process standards because there were no concrete facts of actual
bias: “We conclude that the issue is not whether there was actual
bias, but whether the hearing met minimum constitutional
standards of due process[.]” (Id. at p. 86.) The court concluded the
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.” (Id. at p. 94.)
Taken together, we conclude Quintanar, Howitt, and
Nightlife Partners stand for the following proposition: Although
procedural fairness does not prohibit the combination of the
advocacy and adjudicatory functions within a single
administrative agency, tasking the same individual with both
roles violates the minimum constitutional standards of due
process. The irreconcilable conflict between advocating for the
agency on one hand, and being an impartial decisionmaker on the
14
other, presents a “‘particular combination of circumstances
creating an unacceptable risk of bias.’” (Today’s Fresh Start,
supra, 57 Cal.4th at p. 221, quoting Morongo Band of Mission
Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th
731, 741.)
Here, the DMV acknowledged the DMV is a party to an
APS hearing, the hearing is adversarial, and the hearing officer’s
role involves both advocating on behalf of the DMV and acting as
fact finder. That CDLA may not have demonstrated actual bias is
not dispositive. Rather, evidence of a “particular combination of
circumstances creating an unacceptable risk of bias” is sufficient
to render irrelevant the “presumption that agency adjudicators
are people of ‘“conscience and intellectual discipline, capable of
judging a particular controversy fairly on the basis of its own
circumstances”’. . . .” (Today’s Fresh Start, supra, 57 Cal.4th at
pp. 221-222.)
The DMV’s attempt to distinguish Quintanar, Howitt, and
Nightlife Partners is unavailing. First, the DMV explains that in
Quintanar, there were ex parte communications between a
prosecutor and the ultimate decisionmaker, whereas here, there
were no such ex parte communications because “the DMV
hearing officer is the decisionmaker.” That distinction, however,
only demonstrates how the practice here poses an even greater
threat to due process—there is no need for ex parte
communications because the advocacy and decisionmaking roles
are combined in one individual.
Next, the DMV argues Howitt and Nightlife Partners are
distinguishable because the “DMV hearing officer’s functions
involve considerably less overlap than the functions of the
attorneys and hearing officers” in those cases. We are
unpersuaded. Due process protections are not dispensed with
simply because the “DMV hearing officer typically introduces two
or three official documents into evidence and decides a limited
number of issues.” Rather, “whenever ‘due process requires a
15
hearing, the adjudicator must be impartial.’” (Today’s Fresh
Start, supra, 57 Cal.4th at p. 212.)
Accordingly, we conclude combining the roles of advocate
and adjudicator in a single person employed by the DMV violates
due process under the Fourteenth Amendment and the California
constitution Article I, section 7. (See Today’s Fresh Start, supra,
57 Cal.4th at p. 212 [“[T]he United States Supreme Court and
[California Supreme Court] have identified some aspects of due
process as irreducible minimums[,]” including an impartial
adjudicator].) The trial court therefore erred by granting the
DMV’s motion for summary adjudication that a hearing officer’s
dual roles of advocate for the DMV and adjudicator violates
drivers’ due process rights.
We acknowledge Vehicle Code section 14112, subdivision
(b) purports to permit a hearing officer to be both an advocate
and adjudicator by exempting APS hearings from the separation
of functions requirement set forth in Government Code section
11425.30, subdivision (a).4 Vehicle Code section 14112,
subdivision (b) provides: “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.” Having concluded an APS hearing officer’s dual
roles of advocate and adjudicator violates due process, however,
we further conclude Vehicle Code section 14112, subdivision (b) is
4 Government Code section 11425.30, subdivision (a)
provides: “A person may not serve as presiding officer in an
adjudicative proceeding in any of the following circumstances: [¶]
(1) The person has served as investigator, prosecutor, or advocate
in the proceeding of its preadjudicative stage.”
16
unconstitutional to the extent it permits the DMV to combine the
advocacy and adjudicatory roles in a single APS hearing officer.5
C. CDLA is Entitled to Summary Adjudication of
its First Cause of Action Under Section 1983
1. Applicable Legal Principles
Section 1983 provides, in relevant part: “Every person
who, . . . subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .” “Section 1983 is not itself a
source of substantive rights, ‘“but merely provides ‘a method for
vindicating federal rights elsewhere conferred.’”’” (McAllister v.
Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198,
1207.) “A [section] 1983 action may be brought for a violation of
procedural due process.” (Zinermon v. Burch (1990) 494 U.S. 113,
125.)
“[A] state, an entity acting as an ‘arm of the state,’ or a
state official sued in his official capacity may not be considered a
‘person’ who may be liable under section 1983.” (McAllister v. Los
Angeles Unified School District, supra, 216 Cal.App.4th at p.
5 Relying on Poland v. Department of Motor Vehicles (1995)
34 Cal.App.4th 1128, the DMV contends the hearing officer may
act as a proponent of evidence and trier of fact. CDLA concedes
the DMV may task the same person with both collecting and
developing the evidence and rendering a final decision. (See, e.g.,
Today’s Fresh Start, supra, 57 Cal.4th at p. 220 [The same
individual in an administrative agency may be tasked with
“developing the facts and rendering a final decision”].) He or she
must refrain, however, from advocating on behalf of the DMV as
the DSM currently mandates (i.e., present the DMV’s case and
“promote driver safety,” with no corresponding duty to present
any evidence that would support the position of the driver at the
hearing).
17
1207.) “Of course[, however,] a state official in his or her official
capacity, when sued for injunctive relief, would be a person under
[section] 1983 because ‛official-capacity actions for prospective
relief are not treated as actions against the State.’” (Will v.
Michigan Department of State Police, et al. (1989) 491 U.S. 58, 71,
fn. 10.)
2. A Plaintiff Seeking Injunctive Relief
Against a State Official in His Official
Capacity Need Not Demonstrate the
Official’s Personal Involvement in the
Alleged Constitutional Violation
The DMV argues CDLA’s section 1983 claim fails as a
matter of law because: (1) the DMV director cannot be sued in his
official capacity; and (2) even assuming CDLA intended to sue
the DMV director in his individual capacity, CDLA’s claim fails
because the DMV director has no personal involvement in APS
hearings.
The trial court found “the doctrine of qualified immunity,
despite [the DMV’s] arguments to the contrary, does not shield
[the DMV director] from [liability under section 1983] as the
doctrine is inapplicable here where [CDLA is] suing for injunctive
and declaratory relief . . . .” It concluded, however, that CDLA’s
section 1983 claim failed as a matter of law because CDLA cited
no evidence indicating the DMV director “ha[d] some personal
involvement in the DMV APS hearings.”
The trial court correctly noted the DMV director is not
shielded from liability under section 1983 where, as here, CDLA
is seeking prospective injunctive relief. (See Will v. Michigan
Department of State Police, et al., supra, 491 U.S. at p. 71, fn. 10.)
It erred, however, by requiring CDLA to demonstrate the DMV
director’s personal involvement in the DMV APS hearings. The
DMV acknowledges CDLA “sued Gordon in his official capacity as
the Director of the DMV.” Because CDLA’s section 1983 claim
18
was brought against a state official in his official capacities for
prospective injunctive relief, no proof of personal involvement is
required. (See Hartmann v. Cal. Department of Corrections &
Rehabilitation (9th Cir. 2013) 707 F.3d 1114, 1127 [“‘Suits
against state officials in their official capacity therefore should be
treated as suits against the State.’ [Citation.] A plaintiff seeking
injunctive relief against the State is not required to allege a
named official’s personal involvement in the acts or omissions
constituting the alleged constitutional violation.”].)
We therefore turn to the merits of CDLA’s section 1983
claim. That claim is premised on CDLA’s allegation that the
DMV’s APS hearing structure (specifically, the lack of neutral
hearing officers, and ex parte communications between hearing
officers and DMV managers) violates drivers’ due process rights
under the Fourteenth Amendment to the United States
Constitution. Because the lack of neutral hearing officers at APS
hearings violates drivers’ federal and state due process rights (as
discussed above), we conclude the trial court erred by denying
CDLA’s motion for summary adjudication of its section 1983
claim.6
6 As noted above, the trial court ruled that the DMV’s
structural design allowing for ex parte managerial interference
with the hearing officers’ decision-making violates due process
under the California Constitution. That ruling has not been
appealed. It follows that the structural design also violates the
Fourteenth Amendment. (See Today’s Fresh Start, supra, 57
Cal.4th at p. 212 [“In light of the virtually identical language of
the federal and state guarantees, we have looked to the United
States Supreme Court's precedents for guidance in interpreting
the contours of our own due process clause and have treated the
state clause's prescriptions as substantially overlapping those of
the federal Constitution”].)
19
II. The Parties’ Appeals from the Attorneys’ Fee Order
A. General Principles and Standard of Review
Under Code of Civil Procedure section 1021.5, a trial court
“may award attorneys’ fees to a successful party against one or
more opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest if:
(a) a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons,
(b) the necessity and financial burden of private enforcement, or
of enforcement by one public entity against another public entity,
are such as to make the award appropriate, and (c) such fees
should not in the interest of justice be paid out of the recovery, if
any.”
A trial court awards attorneys’ fees based on the lodestar
method, i.e., the number of hours reasonably expended multiplied
by the reasonable hourly rate. (PLCM Group, Inc. v. Drexler
(2000) 22 Cal.4th 1084, 1095.) It has “broad authority to
determine the amount of a reasonable fee.” (Ibid.) “The lodestar
figure may then be adjusted, based on consideration of factors
specific to the case, in order to fix the fee at the fair market value
for the legal services provided.” (Ibid.) Those factors include “(1)
the novelty and difficulty of the questions involved, (2) the skill
displayed in presenting them, (3) the extent to which the nature
of the litigation precluded other employment by the attorneys,
[and] (4) the contingent nature of the fee award.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
The trial judge “‘is the best judge of the value of
professional services rendered in his [or her] court, and while his
[or her] judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is clearly
wrong.’” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Thus, we
review the trial court’s determination of reasonable attorneys’
20
fees for abuse of discretion. (Syers Properties III, Inc. v.
Rankin (2014) 226 Cal.App.4th 691, 697.)
B. The Trial Court Did Not Abuse Its Discretion in
Determining the Attorneys’ Fee Award
CDLA contends the trial court abused its discretion by
denying CDLA an enhancement of the lodestar figure. The DMV
counters the trial court properly denied an enhancement, but
abused its discretion by failing to reduce the hours requested
because CDLA’s claimed hours were not reasonably spent.7 As
discussed below, we conclude these contentions do not warrant
reversal under the deferential standard of review applicable here.
In denying CDLA’s request for an enhancement of the
lodestar figure, the trial court stated: “The declarations in
support of the [m]otion do not set forth any information with
respect to how the current matter precluded other employment
by the respective attorneys. The Court also finds that the skill
presented in this action does not warrant a multiplier because:
(1) this action did not go to trial . . . (2) based on the deficiencies
in certain of the briefs presented by the parties in connection
with the [motions for summary judgment], the skill level of
[CDLA’s] counsel does not warrant a lodestar multiplier.”
CDLA has not demonstrated the experienced trial judge
abused her discretion. Despite the clear language of the order,
CDLA argues the trial court failed to properly consider the
evidence of extraordinary legal skill. It contends the trial court
placed too much emphasis on the deficiencies in the motions for
summary judgment (including lack of proper citations to facts
and supporting evidence), as opposed to the attorneys’ skill in
formulating the novel and difficult questions raised, and
7 The DMV also argues the fees should have been reduced
because CDLA was only partially successful in its lawsuit.
Having concluded CDLA is entitled to summary judgment, this
argument is moot.
21
conducting extensive research and investigation. These
complaints do not come close to demonstrating the trial court’s
judgment was “clearly wrong.” (Serrano v. Priest, supra, 20
Cal.3d at p. 49.)
We likewise reject CDLA’s argument that the trial court
failed to properly consider the factor of contingent risk and delay.
The trial court considered that factor in determining the
reasonable hourly rates of the attorneys. Specifically, in setting
the hourly rate for the attorney who spent the most hours on the
matter (Mr. Needle), the trial court stated: “The Court takes into
account the contingency nature of Needle’s work, as well as his
tenacity in continuing with the case through an appeal that
reversed the trial court’s decision against his client.” The trial
court, therefore, properly declined to consider that factor again in
determining whether to apply an enhancement. (See Ketchum,
supra, 21 Cal.4th at p. 1138 [“[W]hen determining the
appropriate enhancement, a trial court should not consider these
factors to the extent they are already encompassed within the
lodestar.”].)
The DMV also failed to carry its burden to show the trial
court’s award of attorneys’ fees constituted an abuse of discretion
based on its contention that CDLA’s claimed hours were not
reasonably spent. CDLA supported its motion with declarations
from its attorneys and billing records indicating the number of
hours worked on the matter. The DMV argues CDLA’s billings
contain charges for hours “that were unnecessary, duplicative,
administrative, vague, and block billed.” The trial court, however,
“reviewed the billing entries provided by [CDLA]” and found: “the
billing entries sufficiently establish the tasks carried out in this
matter and that such tasks were carried out in connection with
the litigation of this matter. [The DMV] ha[s] not presented
sufficient evidence . . . that the hours spent on various tasks were
unreasonable, and to the extent that the Court has any issues
with the number of hours, that is reflected in its calculation of
22
the individual attorney’s billable rate. . . . [¶] . . . Although the
use of multiple attorneys has undoubtedly resulted in some
inefficiencies, in light of the unique factual and legal issues
presented in this action, the Court finds that overall the tasks
completed by counsel were within the realm of reasonability.”
The trial court thoroughly analyzed each of CDLA’s nine
attorneys’ requested hourly rate, and reduced the hourly rate of
six attorneys. We discern no abuse of discretion.
Accordingly, we conclude the trial court did not abuse its
discretion in determining the attorneys’ fee award. In light of
CDLA’s additional success on appeal, however, we remand the
matter to the trial court to reevaluate the amount of fees
awarded to CDLA (but express no opinion whether such fees
should be increased), and to calculate the amount of fees CDLA
incurred on appeal. (See Serrano v. Unruh (1982) 32 Cal.3d 621,
637 [“it is established that fees, if recoverable at all — pursuant
either to statute or parties’ agreement — are available for
services at trial and on appeal.”].)
DISPOSITION
On remand, the trial court shall vacate the order denying
both parties’ motions for summary judgment, and enter a new
order granting summary judgment in favor of CDLA. The
judgment is reversed insofar as it entered judgment in favor of
the DMV and against CDLA on “on the First Cause of Action for
violation of due process under 42 U.S.C. § 1983: Due Process
Rights Under the Fourteenth Amendment to the United States
Constitution.”
The judgment shall be modified as follows: (1) Judgment
shall be entered in favor of CDLA and against the DMV director
on CDLA’s first cause of action, and in favor of CDLA and against
the DMV and its director on CDLA’s second and third causes of
action; and (2) In addition to the permanent injunction regarding
ex parte communications, the modified judgment shall also state:
23
the DMV is permanently enjoined and restrained from having its
APS hearing officers function as advocates for the position of the
DMV in addition to being finders of fact in the same adversarial
proceeding.
On remand, the trial court is also directed to reconsider the
amount of fees awarded to CDLA in light of CDLA’s additional
success on appeal (we express no opinion, however, whether the
amount should be increased). CDLA is also awarded its costs and
attorneys’ fees on appeal. The trial court shall determine the
reasonable amount of fees incurred on appeal, and include that
amount in its order awarding CDLA attorneys’ fees.
CERTIFIED FOR PUBLICATION
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
24