California DMV Caselaw
Barry v. Gourley
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
LAUREN ELIZABETH BARRY, Plaintiff and Respondent,
v.
STEVEN GOURLEY, etc., Defendant and Appellant.
Steven Gourley, as director of the California Department of Motor Vehicles (DMV), appeals a judgment granting the petition of Lauren Elizabeth Barry (Barry) for a writ of administrative mandamus directing the DMV to vacate the suspension of her driver’s license. The DMV contends Barry failed to show sufficient medical evidence she could operate a vehicle safely.
BACKGROUND
On May 15, 2005, Barry, then 21 years, 10 months old, received emergency medical treatment for a seizure disorder. The confidential morbidity report regarding the seizure that was prepared by the treating emergency department physician was forwarded to the DMV, as required by statute. (Health & Saf. Code, § 103900, subds. (a), (b).) The report’s “remarks” state: “Driver Impaired; seizure disorder; subtherap[e]utic on phenobarbital, with seizure today.”
On May 31, 2005, the DMV ordered Barry’s driver’s license suspended, effective June 4, 2005, because “a condition characterized by lapses of consciousness renders you incapable of safely operating a motor vehicle.” Her license would remain suspended until “evidence satisfactory to the [DMV] establishes that the cause of this action is removed or does not render you incapable of safely operating a motor vehicle.” Barry had no prior DMV history of traffic citations or arrests.
On June 17, 2005, Barry was examined by her neurologist, Robert Telfer, M.D. The same day he prepared a report on DMV Form DS 2326, entitled “Driver Medical Evaluation.” (DME.) His DME contains the following information: Barry’s diagnosis is “seizure disorder.” He has been treating her for more than a year and sees her regularly at 6 to 12 month intervals. Her only seizure other than the May 15, 2005 seizure was suffered on March 26, 2004. The effects after a seizure episode are confusion, diminished concentration and judgment, and memory loss. She has been taking phenobarbital daily since the March 2004 seizure. Her May 15, 2005 seizure occurred because she had run out of her phenobarbital one and one-half days earlier. Her present condition is stable and her diagnosis is good. Her “controlled medical program” has been maintained for one month. She shows no sporadic loss of conscious awareness, loss of consciousness, or impaired motor function.
In response to the DME’s question, “Have you advised against driving?,” Dr. Telfer checked “yes” and added the handwritten note “[f]or 6 weeks.” He opined that Barry’s condition affects her driving if she does not take her medication, but it is safe for her to drive if she takes her medication regularly.
The DME does not indicate that Barry takes any medications other than phenobarbital.
On July 7, 2005, at Barry’s request, the DMV conducted a hearing concerning the suspension of her license. Barry presented Dr. Telfer’s DME as evidence of her ability to drive safely. She also offered the following personal testimony: She does not suffer from epilepsy. Her first seizure in March 2004 occurred “just [from] being over exerted. I had just had a death in the family, so I was kind of going through a time where my body just kind of shut down, but there’s nothing medically wrong with me at all. And so I was just told at that time [that] maybe under a very stressful condition that’s the only reason they [the examining medical team] would ever see me getting another one. . . .” Since the March 2004 seizure she takes phenobarbital every day; it stays in the system 24 hours. On Friday, May 13, 2005, she tried to obtain a refill of her phenobarbital, but she was informed by her insurance company that it was “too early” for a refill. Barry telephoned her doctor for advice, but he was out of town. On Sunday, May 15, 2005, she had not taken her medication for two and one-half days. She began to feel bad and was waiting to take a bus home when she had a seizure, the first one since March 2004. She takes a minimal dose of Paxil, an antidepressant, which was prescribed by another physician. She has had no side effects from Paxil or phenobarbital, and does not have any problems with alcohol or illicit drugs. She is very good about taking her medicine, knows she needs to take it, and carries it with her at all times. When she started not feeling good on May 15 she knew she should not drive.
The “Findings” in the DMV hearing officer’s order state: “[Barry] testified she suffered her first seizure on 03/24/04 stating that it was due to her being over exerted because of a death in the family. [Barry] was taken to the hospital and tests were done but nothing was found to be wrong. [Barry] testified that she was placed on Phenobarbitol. [Barry] also testified that she suffered another seizure on 05/15/05 because she was denied her medication by her insurance company. She stated that after not taking her medication for 2 1/2 days another seizure occurred. Also testified to taking Paxil for depression.”
The “Additional Findings” state: “DME indicates diagnosis as seizure disorder with episodes on 03/24/025 [sic: 04] and 05/15/05. Doctor states last seizure due to [Barry’s] running out of her anticonvulsant medication. Condition has been controlled for one month and doctor has advised against driving for 6 weeks.”
The concluding paragraph, entitled “Determination,” states: “In the interest of public safety and the above findings, cause exists to sustain the suspension of [Barry’s] driving privilege in that her ability to safely operate a motor vehicle is affected because of a condition characterized by lapses of consciousness and control. [She] is found to be a risk to public safety at this time and a longer period of control is warranted.”
Barry petitioned for a writ of administrative mandamus (Code Civ. Proc., § 1094.5; Veh. Code, §§ 14400, 14401) directing the DMV to set aside the indefinite suspension. The gravamen of her argument was that the DMV erred in suspending her license because it was presented with undisputed medical information to indicate she could drive a vehicle safely despite her seizure disorder diagnosis.
The DMV opposed the petition on the grounds its findings and order were supported by the weight of the evidence and pertinent statutes, and it did not act arbitrarily or capriciously.
At the conclusion of the hearing on the petition, the court made findings from the bench. It found, inter alia: Barry took medication that worked for her known seizure condition; she ran out of her medication because of a problem with her insurance provider; she immediately stopped driving a car; she took her medication regularly; only when she did not have her medication did she not take it; the fact the DME did not refer to her taking Paxil was a nonissue; and Dr. Telfer’s DME was “very clear” that Barry’s problem was curable by medication.
The court granted the petition and entered judgment directing the DMV to vacate its decision to suspend Barry’s license and to reinstate it as though it had never been suspended. The court awarded Barry attorney fees of $1,500 and costs because it found the DMV acted arbitrarily and capriciously in suspending her license.
DISCUSSION
Standard of Review
A party aggrieved by an administrative proceeding may seek judicial review of the agency’s final order or decision on the grounds, inter alia, the order constituted a prejudicial abuse of discretion. “Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
On a claim the findings are not supported by the evidence, the trial court applies the “independent judgment” rule if the decision substantially affects a fundamental vested right. It not only examines the administrative record for errors of law; it also exercises its independent judgment on the evidence disclosed at a limited trial de novo. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; see also Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fakuda); Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 320.) A DMV decision to suspend a driver’s license affects a fundamental vested right. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398; Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 353.)
In the exercise of its independent judgment of the facts, the trial court, while weighing the evidence, “‘can and should be assisted by the findings of the [agency]. The findings of the [agency] come before the court with a strong presumption of their correctness, and the burden rests on the complaining party to convince the court that the [agency’s] decision is contrary to the weight of the evidence.’ [Citation.]” (Bixby v. Pierno, supra, 4 Cal.3d at p. 139; accord, Fukuda, supra, 20 Cal.4th at p. 817.)
In an appeal from a judgment where the trial court exercised its independent judgment, the appellate court applies the substantial evidence test to the trial court’s determination. (Fukuda, supra, 20 Cal.4th at p. 824.) It is obligated to sustain the trial court’s findings if substantial evidence supports them. (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) “In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court. [Citation.]” (Ibid.; Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at p. 321.)
Substantial Evidence
Given this standard of review, the question for us is whether there was substantial evidence before the trial court from which it could find that Barry’s seizure disorder did not affect her ability to operate a motor vehicle safely.
Vehicle Code section 12806, subdivision (c) provides that the DMV may refuse to renew the driver’s license of any person who “has a disorder characterized by lapses of consciousness or who has experienced, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses, or who has any . . . disorder which could affect the safe operation of a motor vehicle unless the [DMV] has medical information which indicates the person may safely operate a motor vehicle. In making its determination, the [DMV] may rely on any relevant information available to the [DMV].”
Here, there is some ambiguity in Dr. Telfer’s June 17, 2005 DME as to whether it was safe for Barry to drive as of the July 7, 2005 DMV hearing. The DME says he advised her against driving for six weeks, without noting when the six weeks commences, e.g., her May 15 seizure date, his June 17 examination date, or some other date. The DME also says he “think[s] it is safe for her to drive if she takes her medication regularly.”
Insofar as the June 17 DME, it states that Barry “is under a controlled medical program for which control has been maintained for one month,” i.e., from the date of her May 15 seizure, the trial court could reasonably infer that Dr. Telfer’s “six weeks” advice referred to six weeks from the time of Barry’s May 15 seizure, i.e., until June 26. Thus, it could find that, as of the July 7 hearing date, the DMV had medical information that Barry could safely operate a motor vehicle.
Other relevant evidence further supported the finding that Barry could safely operate a motor vehicle: She had not suffered another seizure since her initial March 2004 seizure so long as she took her prescribed phenobarbital. She carried her medication with her at all times and failed to take it only once for reasons beyond her control. When she was prevented from taking it, she knew not to drive and took the bus instead.
Dr. Telfer’s opinion, together with the history of the effectiveness of the phenobarbital on Barry’s seizure disorder and her own recognition of the importance of taking her medication regularly and not driving if she is unable to do so, was substantial evidence to support the trial court’s finding that Barry could drive safely if she took her medication regularly.
Independent Judgment
The DMV contends the evidence presented at the administrative hearing was uncontradicted, and therefore the appellate court should not defer to the trial court’s analysis but review de novo “the significance and effect of [Barry’s] DME” on the statutory authority of the DMV to suspend her license. It relies on the following language in Ruttenberg v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1277, 1282-1283 (Ruttenberg): “Where the decisive facts before an administrative body are uncontradicted, it is reversible error for the trial court to set aside the administrative findings as unsupported by the evidence. [Citation.] The determination of the effect of uncontradicted facts is a question of law and the findings and conclusions of the trial court, regardless of the scope of its review, are not controlling on appeal. [Citation.]” (Id., at p. 1282.)
The statutory scheme applicable to the Ruttenberg circumstances distinguishes it from the instant case. In Ruttenberg the DMV suspended a driver’s license because the driver was unable to show proof of financial responsibility at the time of an accident. The financial responsibility laws require suspension of a license whenever a driver who is involved in an accident resulting in property damage greater than $500 fails to prove the existence of financial responsibility at the time of the accident. (Ruttenberg, supra, 194 Cal.App.3d at p. 1280.) These laws also enumerate an exclusive list of the authorized methods of establishing financial responsibility. (Id. at p. 1283.) The trial court ordered the DMV to reinstate the license. The appellate court reversed because the undisputed evidence before the DMV was that the driver sustained more than $500 damage to his car and that he could not show financial responsibility under any of the exclusive statutory provisions at the time of the accident. (Id. at pp. 1283, 1284.) Given those circumstances, the DMV had no discretion to consider any means of establishing financial responsibility other than the means specified in the statute. Its decision to suspend the license was mandated by statute.
By contrast, the statute at issue here, Vehicle Code section 12806, subdivision (c), gives the DMV discretion to suspend the license of a person who has a disorder characterized by lapses of consciousness unless it has medical information and other relevant information that the person may operate a motor vehicle safely. Even if this medical “information” is undisputed, the DMV must nevertheless analyze and evaluate it in order to “mak[e] its determination” (Veh. Code, § 12806, subd. (c)) as to whether the person can safely operate a motor vehicle. Unlike the financial responsibility statutes at issue in Ruttenberg, Vehicle Code section 12806, subdivision (c) does not mandate the DMV to suspend or not suspend a license when presented with an undisputed set of facts. Rather, it then makes a determination, i.e., a “finding,” based on its analysis of the facts before making a decision to issue or renew a driver’s license. Thus, here, the trial court, exercising its independent judgment, had to evaluate whether the evidence, contradicted or uncontradicted, supported the DMV’s findings.
As discussed, the evidence before the DMV was somewhat contradictory, given the ambiguity in Dr. Telfer’s DME as to when the six weeks that Barry should not drive would expire. Consequently, the applicable standard of review is the substantial evidence test of the trial court’s judgment.
However, even if we were to deem the evidence wholly uncontradictory and conduct a de novo review of the administrative record, we would reach the same result as the trial court. An agency abuses its discretion if its order is not supported by the findings or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).) Construed, for argument’s sake, as uncontradicted, the only evidence before the DMV was that Barry could safely operate a motor vehicle if she took her prescribed medication, she was fully cognizant and appreciative of this requirement, and, since her diagnosis, she had never driven without taking her medication. Thus, the order suspending her license without any evidence that she did not or could not drive safely was an abuse of the DMV’s discretion because it was not supported by the findings or the evidence.
In light of our conclusion that, on this record, the independent judgment and substantial evidence standards of review lead to the same result, we need not address the DMV’s contention that Barry failed to meet her burden of showing the DMV that she could operate a vehicle safely, pursuant to Vehicle Code sections 12809, subdivision (a), 12805, subdivision (d), and/or 12806, subdivision (c), or that the trial court ignored section 12805 and misapplied section 12806, subdivision (c ).
Attorney Fees
The DMV contends the court erred in awarding Barry attorney fees and costs.
Government Code section 800 provides that a person who successfully appeals an order from an administrative board, and shows the order was the result of arbitrary or capricious action or conduct by the board, may collect reasonable attorney fees, not to exceed $7,500. As used in the statute, “arbitrary or capricious” encompasses conduct that is not supported by “‘a fair or substantial reason,’” “‘a stubborn insistence on following unauthorized conduct,’” or “‘a bad faith legal dispute.’” (Reis v. Biggs Unified School Dist. (2005) 126 Cal.App.4th 809, 823.) Attorney fees may not be awarded because the board’s action was erroneous, even if clearly erroneous. (Ibid.) The determination of whether the board’s action was arbitrary or capricious is essentially a question of fact, lying within the trial court’s sound discretion. (Ibid.)
In issuing its order, the trial court stated that Dr. Telfer’s DME was “very clear” that Barry’s problem was curable by medication; the DMV hearing officer had an obligation “at the very least” to look at the DME but she did not; the officer reached a conclusion that “simply isn’t supported” by the evidence; the officer did not address Vehicle Code section 12806’s provision regarding the DMV having medical information to indicate a person may safely operate a motor vehicle; the officer “needed to say” if she did not agree with Dr. Telfer’s recommendation or believed Barry’s use of Paxil “played a role;” and the officer “just made a bald and really unsupported statement that [Barry is] a danger to public health, without supporting statements.” It then concluded that the order suspending Barry’s license was arbitrary and capricious because the hearing officer made a determination unsupported by the evidence.
We find no abuse in the award of attorney fees. The DMV’s decision to revoke Barry’s license had no accompanying explanation as to why the overwhelming evidence that she could drive safely if she took her medication and that she did not drive when she did not have the medication, was insufficient to permit her to retain her license. The trial court could reasonably find that this lack of explanation constituted an action “‘not supported by a fair or substantial reason.’” (Reis v. Biggs Unified School Dist., supra, 126 Cal.App.4th at p. 823.)
DISPOSITION
The judgment is affirmed.
Pursuant to Code of Civil Procedure, section 1094.5, subdivision (e), Barry asked the trial court to admit declarations from her and Dr. Telfer. This statute permits the court to admit relevant evidence that could not, in the exercise of reasonable diligence, have been presented at the administrative hearing. In her declaration she declares that when she and Dr. Telfer prepared the DME on June 17, 2005, he told her that the “six weeks he was advising that [she] not drive ran from the date of [her] seizure on May 15, 2005;” that she assumed the six weeks ran from May 15, and that if she thought there was any ambiguity about the start date, she would have secured a statement from him prior to her July 7 DMV hearing or spoken up at that hearing. Dr. Telfer declared that his information on the DME form that he advised Barry not to drive for six weeks meant six weeks from her May 15 seizure, not six weeks from the June 17 DME or any other date.
The DMV opposed the request because Barry failed to show that her declarations could not have been presented at the July 7 DMV hearing and because Vehicle Code section 13559, subdivision (a) provides that a trial court reviewing a DMV order suspending a license shall review the record of the hearing and not consider other evidence. Because section 13559 deals solely with review of suspensions due to driving under the influence.
The trial court was aware of but never specifically ruled on Barry’s request to admit the declarations. Barry invites us to consider them. Insofar as the declarations are unnecessary to reach our conclusions, we decline.
Vehicle Code section 12809, subdivision (a) states: “The [DMV] may refuse to issue or renew a driver’s license to any person [] If the [DMV] is satisfied that the applicant is not entitled to the license under this code.
Section 12805, subdivision (d) states: “The [DMV] shall not issue a driver’s license to, or renew a driver’s license of, any person: [] When it is determined, by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway.”