Filed 9/29/16

                              CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                        DIVISION ONE

                                     STATE OF CALIFORNIA



BRANDEN LEE HALL,                               D068516

        Petitioner,                             (San Diego County
                                                Super. Ct. No. 37-2014-00023355-CU-
        v.                                                     WM-CTL)

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent;

DEPARTMENT OF MOTOR VEHICLES
et al.,

         Real Parties in Interest.


        Proceedings in mandate challenging an order of the Superior Court of San Diego

County, the Honorable Tamila E. Ipema, Judge. Petition granted in part and denied in

part.

        Law Office of A.P. Zmurkiewicz and A.P. Zmurkiewicz for Petitioner.

        No appearance for Respondent.
       Kamala D. Harris, Attorney General, Chris Knudsen, Assistant Attorney General,

Celine M. Cooper and Alice Q. Robertson, Deputy Attorneys General, for Real Parties in

Interest.

       The Department of Motor Vehicles (DMV) revoked Branden Lee Hall's driver's

license because, after being arrested for driving under the influence, he refused to submit

to a chemical test for blood alcohol content. (Veh. Code,1 § 13353, subd. (a)(2).) Hall

filed a petition for a writ of mandate or review (petition) in the superior court, seeking an

order directing the DMV to vacate the revocation on the grounds there was no admissible

evidence that police properly admonished him that refusing to submit to a blood alcohol

test would result in his license being revoked.

       While Hall's petition was pending, the DMV hearing officer who upheld the

revocation, Alva Garrido Benavidez, pleaded guilty in federal court to taking bribes in

exchange for giving favorable treatment to persons arrested for driving under the

influence.

       Hall amended the petition to allege Benavidez's corruption deprived him of his due

process right to a fair hearing. The DMV filed opposition, asserting there was no

evidence Benavidez was actually biased in deciding Hall's case.

       In a ruling the Attorney General characterizes as "inherently contradictory," the

court "denie[d] the writ"—but granted Hall relief by remanding to the DMV for a new




1      All statutory references are to the Vehicle Code unless otherwise specified.
                                              2
hearing, stating Benavidez's "criminal conduct while acting as a hearing officer for the

DMV . . . raises a red flag with respect to all hearings presided by her."

       Unsatisfied with a new hearing, Hall appeals, contending section 13559 required

the court to order the DMV to reinstate his driver's license. Hall also contends there is no

admissible evidence that police properly admonished him that refusing a blood alcohol

test would result in revocation of his driver's license. Additionally, Hall again argues

Benavidez's bribe-taking in other cases deprived him of his due process right to a fair

DMV hearing.

       As explained post, we construe the court's order as a remand to the administrative

agency to conduct a new hearing—which is not an appealable order. (Gillis v. Dental Bd.

of California (2012) 206 Cal.App.4th 311, 318 (Gillis).) However, because the order is

unclear on the question of appealability ("den[ying] the writ," but ordering a new

hearing), we exercise our discretion to treat Hall's purported appeal as a petition for a writ

of mandate. (Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101

Cal.App.4th 1133, 1139-1140 (Village Trailer Park).)

       We hold that a DMV hearing officer who admits to taking bribes for nearly a

decade does not meet the constitutional standard of impartiality. Accordingly, we

conclude the court correctly ordered a new administrative hearing. We reject Hall's

contention that section 13559 compelled reinstatement of his driver's license in this case.

Additionally, we decline to reach the issue of whether police properly admonished Hall

about the consequences of refusing a blood alcohol test. Because Hall will receive a new



                                              3
DMV hearing, that issue must be decided in the first instance by an impartial DMV

hearing officer.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Hall Is Arrested for Driving Under the Influence

       On March 22, 2014, after the car Hall was driving rear-ended another car stopped

at a red light, La Mesa police arrested Hall for driving under the influence. Hall had two

prior convictions for driving under the influence, in 2006 and 2008.

       The arresting officer noticed a strong odor of alcohol on Hall's breath and that Hall

had red eyes and slurred speech. Police administered field sobriety tests, which Hall did

not successfully complete. One of Hall's minor children, a passenger in the back seat of

his car, told police Hall had been drinking and several people tried to stop Hall from

driving because he "drank too much."

       After his arrest, Hall refused to submit to a blood alcohol test. A police officer

asked him, "Will you take a breath test?" Hall said, "No." The officer asked, "Will you

take a blood test?" Hall said, "Nah, nothing." After obtaining a warrant, police obtained

a blood sample from Hall anyway.2

       B. License Suspension Hearing

       Because Hall refused to submit to a blood alcohol test, the arresting officer seized

Hall's driver's license, notified Hall his license would be suspended or revoked by the




2      The parties do not inform us of the test results.
                                              4
DMV in 30 days, and advised Hall he had 10 days to request a DMV hearing to show the

suspension or revocation was not justified.

       Hall requested a hearing, which was conducted on June 13, 2014, by Benavidez, a

DMV-appointed hearing officer.

       The hearing was limited to four issues: (1) Did the police officer have reasonable

cause to believe Hall was driving a motor vehicle under the influence of alcohol in

violation of section 23152; (2) was Hall lawfully arrested; (3) was Hall told his driving

privilege would be suspended or revoked for one, two, or three years if he refused to

submit to or failed to complete a chemical test; and (4) did Hall refuse to submit to or fail

to complete a chemical test when requested to do so by a peace officer. (§ 13557, subd.

(b)(1).)

       No witness testified at the hearing. The DMV offered five exhibits into evidence:

(1) An "Officer's Statement" indicating police arrested Hall on March 22, 2014, and there

was probable cause based on the odor of alcoholic beverage, Hall's bloodshot and watery

eyes, slurred speech, and poor physical coordination. The reverse side of this form is

dated "9-27-14" and contains the admonishment: "You are required by state law to

submit to a . . . chemical test to determine the alcohol . . . content of your blood. [¶] . . .

[¶] . . . Because I believe you are under the influence of alcohol, you have a choice of

taking a breath or blood test. [¶] . . . [¶] . . . If you refuse to submit to, or fail to

complete a test, your driving privilege will be suspended for one year or revoked for two

to three years. . . ." The response to "Will you take a breath test" is "No." The response

to "Will you take a blood test" is "Nah, nothing"; (2) A seven-page traffic collision

                                                5
report; (3) a one-page "Narrative"; (4) a two-page "Intoxication Report"; and (5) Hall's

driving record, showing his prior convictions for driving under the influence and other

offenses.

       Hall's attorney objected to exhibit 1, the admonition, as inadmissible hearsay. He

noted the document shows "3/22/14" as the arrest date, but also states the police gave the

required admonition on "9-27-14." Because it is impossible to give an admonishment six

months after an arrest, counsel asserted this error "renders the document not an official

record under Evidence Code section 1280." Hall's attorney stated, "[T]hat element of

Evidence Code section 1280, that being that the entry must be made at or near the time of

the event, is not satisfied. We can't tell from the document when that entry was made.

The source of information—also doesn't indicate its trustworthiness. The date's clearly

off. The method and time of preparation are also suspect." Hall's attorney also argued,

"[A]nd any presumption that any official duty has been regularly—performed has been

rebutted as well."

       Benavidez overruled these objections and received all five exhibits into evidence.

Subsequently, Benavidez issued a "Notification of Findings and Decision," sustaining the

revocation of Hall's driver's license through July 3, 2017. Benavidez ruled the

discrepancy between the "3/22/14" date of arrest and the "9-27-14" date of admonishment

was a "clerical error" that did not affect the document's trustworthiness or rebut the

official duty presumption.




                                             6
       C. Writ Petition in Superior Court

       On July 15, 2014, Hall filed a petition for a "peremptory writ of mandate and for

review" in superior court. Hall asserted the date discrepancy in the chemical test

admonition was "substantial and significant," rendering the document inadmissible under

the hearsay exception for official records. Hall argued that without the admonition, there

was insufficient evidence to sustain a finding he was properly admonished. The petition

was set for a February 18, 2015 hearing.

       D. Benavidez Charged with Taking Bribes; Hall's Petition Is Continued

       On February 3, 2015, the United States Attorney filed an information in district

court alleging that Benavidez, while presiding over DMV hearings, conspired with

certain attorneys to accept bribes in violation of title 18 United States Code section

666(a)(1)(B.3 The government alleged that Benavidez removed arrest information before

it could be entered in the DMV database and unlawfully issued temporary driver's

licenses to persons charged with driving under the influence in exchange for

approximately $5,000 cash, plus meals, sunglasses, and luxury items "such as designer


3        Title 18 United States Code section 666 provides in part: "(a) Whoever, if the
circumstance described in subsection (b) of this section exists [¶] (1) being an agent of an
organization, or of a State . . . or any agency thereof—[¶] . . . [¶] (B) corruptly solicits or
demands for the benefit of any person, or accepts or agrees to accept, anything of value
from any person, intending to be influenced or rewarded in connection with any business,
transaction, or series of transactions of such organization, government, or agency
involving anything of value of $5,000 or more . . . [¶] . . . [¶] shall be fined under this
title, imprisoned not more than 10 years, or both. [¶] (b) The circumstance referred to in
subsection (a) of this section is that the organization, government, or agency receives, in
any one year period, benefits in excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance."

                                               7
purses." The government alleged Benavidez's bribe taking began in approximately 2005

and continued through August 2014, a period that includes Hall's hearing.

        On February 18, 2015, over the DMV's objections, the court granted Hall leave to

amend his petition to allege his due process right to a fair administrative hearing was

violated because Benavidez was not impartial.4

        E. Benavidez Pleads Guilty; Hall Files an Amended Petition

        Meanwhile, on February 3, 2015, Benavidez pleaded guilty to conspiracy to accept

a bribe in violation of title 18 United States Code section 666(a)(1)(B), as alleged in

count 1 of the information. On February 20, 2015, the district court accepted her guilty

plea.

        Thereafter, Hall filed an amended petition, repeating the previous allegations

concerning the discrepancy between the date of arrest and admonishment, and also

alleging, for the first time, that the DMV violated Hall's due process right to a fair

hearing because Benavidez, the hearing officer, took bribes in other cases. In an

accompanying memorandum of points and authorities, Hall's attorney asserted that due

process requires "that the decision maker . . . not be a person who is actively engaged in

taking bribes and whose decisions can be bought." Although Benavidez was not bribed

in Hall's case, his attorney argued bribes Benavidez received in other cases "invariably

raises the concern that, 'If I don't bribe her, she will rule against me'" or cause a person to


4      The record does not contain any papers filed or lodged in support of or in
opposition to Hall's motion for leave to amend, nor any reporter's transcript from a
hearing on that motion.

                                               8
believe "'[s]he ruled against me because I didn't bribe her.'" Citing section 13559,

subdivision (a), Hall's attorney asserted the court was required to order the DMV to

reinstate Hall's license.5

       The DMV filed opposition, stating there was no due process violation because

Benavidez did not seek a bribe in Hall's case, nor was there evidence she was actually

biased in his case.

       F. The Court Denies the Writ, but Remands for a New DMV Hearing

       The court conducted a hearing on April 20, 2015, and approximately one month

later issued a 14-page decision.6

       In its decision, the court first determined there was sufficient evidence, entirely

apart from exhibit 1, the document Hall challenged, to find police properly admonished

him about the consequences of refusing a blood alcohol test.

       Next, the court addressed Hall's due process argument. That part of the court's

ruling is not a model of clarity, and both Hall and the DMV criticize it. The Attorney

General characterizes the ruling as "inherently contradictory." Hall's attorney states the

remand for a new DMV hearing is "ultra vires."



5       Section 13559, subdivision (a) provides in part: "The review shall be on the
record of the hearing and the court shall not consider other evidence. If the court finds
that the department exceeded its constitutional or statutory authority . . . , the court may
order the department to rescind the order of suspension or revocation and return, or
reissue a new license to, the person."

6      A minute order dated May 18, 2015, indicates the court heard oral argument;
however, Hall elected to proceed on appeal without a reporter's transcript or any
substitute.
                                              9
       To begin, the court stated, "The fact Benavidez pled guilty is evidence of her

misconduct and that she engaged in criminal conduct while acting as a hearing officer for

the DMV, and this fact clearly raises a red flag with respect to all hearings presided by

her." However, the court also stated there is "no indication on the facts and the evidence

presented that Hall was denied due process." The court explained:

          "However, with respect to . . . Benavidez and any bias she may have
          had, Hall does not claim that he was offered to participate in the
          bribery scheme and he refused, or show that because . . . Benavidez
          took bribes in other cases, his case was necessarily negatively
          affected because he did not pay a bribe. Except to state he was
          denied due process in that the hearing was not presided over by an
          impartial hearing officer, Hall does not state a prima facie case of
          misconduct in his case, to support the claim he was denied a
          meaningful opportunity to be heard. As the People [sic] point
          out . . . Benavidez was charged with conduct that benefited the
          drivers against the DMV. Further, there is no indication on the facts
          and the evidence presented that Hall was denied due process or
          that . . . Benavidez' decision in Hall's case was arbitrary and
          unsupported by the record."

       Nevertheless, the court stated she was "greatly disturbed by the fact that a hearing

officer assigned to [Hall's] case, who is in the position of authority making important

decisions that affects people's life [sic], was corrupt and was convicted in Federal Court

of bribery." The court added, "The perception of bias in trial proceedings destroys the

public's confidence in our justice system and must not be tolerated."

       Citing Code of Civil Procedure section 1094.5, subdivisions (e) and (f), together

with two published appellate cases involving biased decision makers in administrative




                                            10
hearings (the court in each remanded for a new administrative hearing),7 the court

concluded, "[B]ased on the law and in fairness to both parties, the court denies the writ

with instructions to remand the case for a new administrative hearing. This way, [Hall] is

afforded a fresh start with a new fair and impartial hearing officer."

       Hall timely filed a notice of appeal from what his attorney characterized as a "final

decision on Petition for Writ of Mandate."

                                       DISCUSSION

             I. ADMINISTRATIVE LICENSE SUSPENSIONS, IN GENERAL

       California has enacted an implied consent statute providing noncriminal sanctions

for an individual's refusal to submit to a blood alcohol test when arrested for driving

under the influence of alcohol or drugs.8 Section 23612, subdivision (a)(1)(A) provides

in part:

           "A person who drives a motor vehicle is deemed to have given his or
           her consent to chemical testing of his or her blood or breath for the
           purpose of determining the alcoholic content of his or her blood, if
           lawfully arrested for an offense allegedly committed in violation of
           Section 23140 [under age 21, 0.05 percent alcohol] , 23152 [driving



7     Nissan Motor Corp. v. New Motor Vehicle Bd. (1984) 153 Cal.App.3d 109 (Nissan
Motor Corp.) and Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470 (Nasha).

8      In Birchfield v. North Dakota (2016) __ U.S. __ [136 S.Ct. 2160], the United
States Supreme Court considered the constitutionality of state statutes making a refusal to
undergo a blood alcohol test a criminal offense. In considering that issue, the Birchfield
court noted that its "prior opinions have referred approvingly to the general concept of
implied-consent laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply . . . and nothing we say here should be read to cast doubt
on them." (Id. at p. 2185.)

                                             11
           under influence], or 23153 [driving under the influence and causing
           bodily injury]."

       Section 23612, subdivision (a)(1)(D) provides that the person arrested for driving

under the influence "shall be told that his or her failure to submit to, or the failure to

complete, the required chemical testing" will result in a fine, mandatory imprisonment

upon conviction of driving under the influence, and suspension or revocation of the

person's driver's license.9

       If an individual refuses to submit to such testing, section 13353 provides for

suspension or revocation of the person's driver's license.10 However, if police do not



9       Section 23612, subdivision (a)(1)(D) provides: "The person shall be told that his
or her failure to submit to, or the failure to complete, the required chemical testing will
result in a fine, mandatory imprisonment if the person is convicted of a violation of
Section 23152 or 23153, and (i) the suspension of the person's privilege to operate a
motor vehicle for a period of one year, (ii) the revocation of the person's privilege to
operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a
separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140,
23152, or 23153 of this code, or of Section 191.5 or subdivision (a) of Section 192.5 of
the Penal Code that resulted in a conviction, or if the person's privilege to operate a motor
vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2
for an offense that occurred on a separate occasion, or (iii) the revocation of the person's
privilege to operate a motor vehicle for a period of three years if the refusal occurs within
10 years of two or more separate violations of Section 23103 as specified in Section
23103.5, or of Section 23140, 23152, or 23153 of this code, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that
resulted in convictions, or if the person's privilege to operate a motor vehicle has been
suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2
for offenses that occurred on separate occasions, or if there is any combination of those
convictions, administrative suspensions, or revocations."

10     Section 13353, subdivision (a) provides: "If a person refuses the officer's request
to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon
receipt of the officer's sworn statement that the officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section 23140 , 23152, or 23153,
                                              12
properly advise the person that his or her driving privilege will be suspended or revoked

if the individual refuses to submit to blood alcohol testing, then the DMV cannot suspend

or revoke the person's license despite the refusal. (§ 13557, subd. (b)(1)(D); Daly v.

Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 261 ["Proper warning of the

consequence of refusal is an element essential to the suspension of a driver's license."].)

       If the person arrested for driving under the influence refuses to submit to blood

alcohol testing, the police will give the person notice of the administrative suspension, a

30-day temporary permit to drive, and notice of the right to request an administrative

hearing. (§§ 13353, 23612, subd. (a).)

       In such a case, the arresting officer completes a document entitled, "Officer's

Statement," which is intended to contain the facts necessary for DMV to suspend the

license. (§ 13353, subd. (a)(3)(C).) Upon receipt of this paperwork containing the

requisite information, the DMV will suspend or revoke the person's license. (§ 13353,

subd. (d).)

       A person who has received a notice of an order of suspension of revocation may

request a hearing before the DMV. (§ 13558, subd. (a).) In a case involving the refusal

to submit to a blood alcohol test, the issues to be considered at the hearing are whether


and that the person had refused to submit to, or did not complete, the test or tests after
being requested by the officer, the department shall do one of the following: [¶] (1)
Suspend the person's privilege to operate a motor vehicle for a period of one year."
       This statute further provides that for a person who has received one or two prior
driving under the influence convictions within 10 years, revocations of two and three
years are mandated. (See § 13553, subd. (a)(2) & (a)(3).) In this case, as noted ante,
Hall has two such convictions within 10 years.

                                             13
(1) the officer had reasonable cause to believe the individual was driving a vehicle in

violation of section 23152 or 23153; (2) the person was lawfully arrested; (3) the arrestee

was properly advised of the consequences of refusing to submit to or complete a blood

alcohol test; and (4) the person refused to submit to, or failed to complete, the blood

alcohol test. (§ 13557, subd. (b)(1).)

       The administrative hearing is held before a DMV hearing officer. (§ 14104.2.) If

the hearing officer finds each issue is established by a preponderance of the evidence, the

person's driver's license will be suspended or revoked. (§ 13557, subd. (b)(1).)

       "A determination by the DMV to suspend [or revoke] an individual's driver's

license is subject to judicial review in the trial court by means of a petition for writ of

mandate." (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 862.)

More specifically, section 13559 provides in part:

           "(a) [W]ithin 30 days of the issuance of the notice of determination
           of the department sustaining an order of suspension or revocation of
           the person's privilege to operate a motor vehicle . . . the person may
           file a petition for review of the order in the court of competent
           jurisdiction in the person's county of residence. The filing of a
           petition for judicial review shall not stay the order of suspension or
           revocation. The review shall be on the record of the hearing and the
           court shall not consider other evidence. If the court finds that the
           department exceeded its constitutional or statutory authority, made
           an erroneous interpretation of the law, acted in an arbitrary and
           capricious manner, or made a determination which is not supported
           by the evidence in the record, the court may order the department to
           rescind the order of suspension or revocation and return, or reissue a
           new license to, the person."




                                              14
                               II. APPEALABILITY ISSUES

        A. The Order Is a Nonappealable Remand Order

        A trial court's order denying a petition for a writ of mandate is an appealable order

where there are no remaining causes of action between the parties. (MCM Construction,

Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 367, fn. 3;

Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1122.) Conversely,

"[a] remand order to an administrative body is not appealable." (Village Trailer Park,

supra, 101 Cal.App.4th at pp. 1139-1140.)

        At the outset, Hall and the DMV disagree whether the court's order here is

appealable. The Attorney General contends the order is a nonappealable remand order.

Hall contends the superior court "denied" the amended petition, the court's remand order

is "ultra vires," and therefore the order is appealable as a final order denying a petition for

writ of mandate.

        To resolve this issue, we must interpret the court's order. "The substance and

effect of the order, not its label or form, determines whether it is appealable." (Joyce v.

Black (1990) 217 Cal.App.3d 318, 321.) "If a judgment is ambiguous, we may examine

the entire record to determine its scope and effect, including the pleadings." (Rancho

Pauma Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th 109,

115.)

        Considering the order as a whole, the court's overarching ruling is that Hall is

entitled to a new DMV hearing on due process grounds. In two places, the court stated it

was deeply troubled by Benavidez's "criminal conduct while acting as a hearing officer

                                              15
for the DMV" which "raise[d] a red flag with respect to all hearings presided by her."

The court determined there was no evidence Benavidez was actually biased in Hall's case,

stating there is "no indication on the facts and the evidence presented that Hall was

denied due process." Nevertheless, the court stated she "agrees with [Hall] that he has a

right to be heard by an impartial decision maker" and therefore ordered a new hearing.

       The court cited two cases as authority for its remand for a new DMV hearing—

Nissan Motor Corp., supra, 153 Cal.App.3d 109 and Nasha, supra, 125 Cal.App.4th 470.

Examining these cases is therefore helpful in discerning the court's intent.

       In Nissan Motor Corp., the court held that a hearing conducted by the New Motor

Vehicle Board violated due process rights to a fair and impartial hearing because four of

the nine board members were new car dealers, and none were car manufacturers. Stating

"the tribunal is clearly biased and slanted towards the car dealers" (Nissan Motor Corp.,

supra, 153 Cal.App.3d at p. 113), the court remanded for a new hearing "without the

participation of the new motor vehicle dealer members." (Id. at p. 116.)

       In Nasha, while a residential development project was pending before the city's

planning commission, one of its members authored an article attacking the project.

(Nasha, supra, 125 Cal.App.4th at p. 473.) The appellate court first held that a superior

court may consider evidence not presented at the administrative hearing relating to a

claim the petitioner was deprived of due process. (Id. at p. 485.) Next, finding an

"unacceptable probability of actual bias" (id. at p. 483), the appellate court directed the

superior court to issue a writ vacating the planning commission's decision and directing it

to conduct a new hearing before an impartial panel. (Id. at p. 486.)

                                             16
       In light of the foregoing, we construe the order as granting Hall's amended petition

on due process grounds, directing the DMV to conduct a new hearing with an impartial

hearing officer, and denying the amended petition in all other respects. This reconciles

the court's statement that it "denies the writ" with the rest of the order. As such, the order

is nonappealable. (Gillis, supra, 206 Cal.App.4th at p. 318.)11

       B. The Remand Order Is Not Ultra Vires

       In interpreting the court's decision, we reject Hall's assertion that the court had no

authority to order a remand or, to use Hall's words, that the remand is "ultra vires." Hall's

ultra vires argument is based on section 13559, which provides for judicial review of an

adverse DMV hearing determination.

       Under section 13559, review is limited to the record of the administrative hearing,

and the trial court may not consider any other evidence. (§ 13559, subd. (a).)

Additionally, section 13559, subdivision (a) also provides, "If the court finds that the

department exceeded its constitutional or statutory authority . . . , the court may order the

department to rescind the order of suspension or revocation and return, or reissue a new

license to, the person." Focusing on this last sentence in section 13559, Hall argues the

exclusive remedy in a proceeding brought under section 13359 is license reinstatement,

and the court cannot instead order a new hearing.




11     Having construed the order as one granting a writ directing the DMV to conduct a
new hearing, we reject Hall's argument the court had no authority to order the DMV to do
anything except by issuing a writ.
                                             17
       Hall's argument fails because his amended petition was not based solely on section

13359. The due process argument in Hall's amended petition was based on outside-the-

record evidence Benavidez pleaded guilty to bribery. Under section 13559, subdivision

(a), the court would have been precluded from considering that evidence. As noted ante,

that statute provides, "The review shall be on the record of the hearing and the court shall

not consider other evidence." (§ 13559, subd. (a).)

       To avoid this limitation and to get Benavidez's guilty plea before the court, in his

amended petition Hall invoked Code of Civil Procedure section 1094.5, governing writs

of administrative mandate. The caption of Hall's amended petition cites not only section

13559, but also Code of Civil Procedure section 1094.5. Code of Civil Procedure section

1094.5, subdivision (e), which the court treated as applicable here, provides in relevant

part: "Where the court finds that there is relevant evidence that, in the exercise of

reasonable diligence, could not have been produced . . . at the hearing before respondent,

it may enter judgment as provided in subdivision (f) remanding the case to be

reconsidered in the light of that evidence."

       Thus, contrary to Hall's contention, ordering a new hearing is not "ultra vires."

Considering outside-the-record evidence of Benavidez's guilty plea, and remanding to the

DMV for a new hearing, was authorized under Code of Civil Procedure section 1094.5, a

statute Hall invoked, and upon which the court relied.

       C. We Treat Hall's Attempted Appeal as a Writ Petition

       "A reviewing court has jurisdiction over a direct appeal only when there is (1) an

appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com.

                                               18
(2001) 25 Cal.4th 688, 696.) Although Hall has attempted to appeal from a

nonappealable remand order, the Attorney General urges us to "accept review of the trial

court's order of remand as a petition for writ of mandate." Hall, who did not file a reply

brief, has not responded to this argument.

       In Olson v. Cory (1983) 35 Cal.3d 390 (Olson) at pages 400-401, the California

Supreme Court held it was appropriate to treat an appeal from a nonappealable order as a

petition for an extraordinary writ when (1) requiring the parties to wait for a final

judgment might lead to unnecessary trial proceedings; (2) the briefs and record included,

in substance, the necessary elements for a proceeding for a writ of mandate; (3) there was

no indication the trial court would appear as a party in a writ proceeding; (4) the

appealability of the order was not clear; and (5) the parties urged the court to decide the

issues rather than dismiss the appeal. The Supreme Court cautioned, however, that the

power to treat an appeal from a nonappealable order as a petition for a writ of mandate

should not be exercised except under unusual circumstances. (Id. at p. 401.) In

Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 770, footnote 16, this court

stated an attempted appeal from a nonappealable order should be treated as a writ petition

only in "'extraordinary circumstances.'"

       Extraordinary circumstances warrant treating Hall's attempted appeal as a writ

petition. In Olson, "that the issue of appealability was far from clear in advance" was an

unusual circumstance justifying the Supreme Court's decision to treat the purported

appeal as a petition for a writ of mandate. (Olson, supra, 35 Cal.3d at p. 401.) Here too,

through no fault of the parties, the appealability of the court's order was not clear. The

                                             19
court stated it found no evidence of a due process violation, but later agreed with Hall his

due process rights were violated, requiring a new hearing before an impartial hearing

officer. The court at one point states it "denies the writ" (indicating an appealable order),

but then remands for a new hearing. It would be manifestly unfair under these

circumstances to preclude Hall from obtaining appellate review because he filed a notice

of appeal rather than a writ petition in this court.

       Moreover, most of the other Olson factors are also present here: The issues have

been fully briefed, the existing record includes in substance the elements necessary for a

proceeding for a writ of mandate in this court; there is no indication the trial court would

be more than a nominal party to the writ proceeding; the DMV urges a decision on the

merits; and Hall has not opposed that request. Accordingly, we treat Hall's purported

appeal as a petition for a writ of mandate. (Board of Dental Examiners v. Superior Court

(1998) 66 Cal.App.4th 1424, 1430-1431 [remand order was not appealable but appellate

court exercised its discretion to treat appeal as a petition for writ of mandate].)

                  III. THE COURT CORRECTLY DETERMINED THAT
                        HALL IS ENTITLED TO A NEW HEARING

       A. The Standard of Review

       "A challenge to the procedural fairness of the administrative hearing is reviewed

de novo on appeal because the ultimate determination of procedural fairness amounts to a

question of law." (Nasha, supra, 125 Cal.App.4th at p. 482.) This due process issue is

properly before us because Hall challenges the order remanding for a new hearing, which

necessarily encompasses whether his due process right to a fair hearing was violated by


                                              20
having a hearing officer who took bribes in other cases. (See Securitas Security Services

USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1124 & fn. 7.)

       B. Intolerably High Risk of Actual Bias Standard

       "When, as here, an administrative agency conducts adjudicative proceedings, the

constitutional guarantee of due process of law requires a fair tribunal." (Today's Fresh

Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 215

(Today's Fresh Start).) "A fair tribunal is one in which the . . . decision maker is free of

bias for or against a party." (Ibid.)

       "Of all the types of bias that can affect adjudication, pecuniary interest has long

received the most unequivocal condemnation and the least forgiving scrutiny." (Haas v.

County of San Bernardino (2002) 27 Cal.4th 1017, 1025.) Thus, even though due

process allows more flexibility in administrative process than judicial process, "the rule

disqualifying adjudicators with pecuniary interests applies with full force" in

administrative proceedings. (Id. at p. 1027.) Moreover, although adjudicators challenged

for reasons other than financial interest have been afforded a presumption of impartiality,

"adjudicators challenged for financial interest have not. Indeed, the law is emphatically

to the contrary." (Id. at p. 1025.)

       Accordingly, "where the basis for a challenge is an alleged pecuniary interest, the

presumption of impartiality that would otherwise apply has no place." (Today's Fresh

Start, supra, 57 Cal.4th at p. 216.) Rather, "due process is violated whenever a decision

maker has a financial interest that 'would offer a possible temptation to the average

person as judge not to hold the balance nice, clear and true.'" (Ibid.) "Conclusive proof

                                             21
of actual bias is not required; an objective, intolerably high risk of actual bias will

suffice." (Ibid.)

       C. Hall Is Entitled to a New Hearing

       A litigant is entitled to have confidence that the hearing officer before whom he or

she appears is not accepting bribes in other cases. A corrupt decision maker who wants

to retain office will try to hide bribe-taking. An obvious way to do that is to favor the

government in cases where no bribe is tendered. This form of bias, called

"compensatory" bias, occurs when a decision maker, who is taking bribes in some cases,

is biased against those who do not bribe the decision maker, so he or she avoids being

perceived as uniformly and suspiciously soft on the party opposing the government. (See

Bracy v. Gramley (1997) 520 U.S. 899, 905 [defining compensatory bias].)

       Absent a confession from Benavidez about this particular case, which is not in this

record, there is no way of knowing for certain whether she was biased in deciding Hall's

case. However, the constitutional standard of impartiality is framed in terms of

probabilities, not certainties. (Woody's Group, Inc. v. City of Newport Beach (2015) 233

Cal.App.4th 1012, 1021.) The law does not require someone in Hall's position to prove

actual bias. Rather, "an objective, intolerably high risk of actual bias will suffice."

(Today's Fresh Start, supra, 57 Cal.4th at p. 216.)

       We know from Benavidez's guilty plea that she accepted bribes for nearly a

decade and was paid thousands of dollars in cash and took additional bribes in property.

Benavidez did not have a momentary ethical lapse or an isolated act of poor judgment.

She took bribes over a time period that for some people is an entire career.

                                              22
       The disdain her conviction shows for the duties of her office eliminates any

presumption that she was a fair and impartial decision maker when not taking bribes.

Benavidez's repudiation of her obligation to impartially decide cases evidences an

intolerably high risk of bias in Hall's case and entitles him to a new hearing before a fair

and impartial hearing officer. The proper remedy for the denial of a fair administrative

hearing is to remand the matter for a new administrative hearing before a different,

qualified hearing officer. (See Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133,

1145 ["where the administrative agency fails to provide a fair hearing . . . the court

should remand to the administrative agency to consider the evidence and to exercise its

discretion following a full and fair hearing on the merits"].)

       D. The Attorney General's Arguments Are Unavailing

       The Attorney General contends Hall's due process claim fails because "[e]ven the

trial court determined Hall did not present information or evidence showing he was

denied due process or that Benavidez' decision was unsupported by the record." This

argument fails for two reasons. First, to establish a due process violation, Hall was not

required to show Benavidez was actually biased in his case. (Today's Fresh Start, supra,

57 Cal.4th at p. 216.) Second, even assuming, without deciding, that Benavidez's

evidentiary rulings and decision are justifiable as within the bounds of discretion, this

does not demonstrate a lack of bias. A corrupt decision maker may give plausible

reasons for rulings, and yet make the decision for dishonest reasons. By their very

nature, discretionary rulings are not a reliable indication of bias. The concept of

discretion assumes there is more than one reasonably defensible resolution of the

                                             23
particular issue. When bias is present in a corrupt hearing officer's discretionary

decisions, it will rarely be visible in the decision maker's rulings. Indeed, a corrupt

hearing officer with Benavidez's experience would be expected to mask bias by not

making indefensible rulings.

       The Attorney General also asserts Hall's claim of bias is not "logical" because

Benavidez pleaded guilty to accepting bribes to rule against the DMV—and here, she

ruled in the DMV's favor. The Attorney General contends, "[t]here is no indication she

has ever . . . exhibited any bias in favor of the DMV." This argument fails because it

ignores the probability of compensatory bias. Benavidez's willingness to take bribes for

nearly a decade reasonably calls into question her ability to be fair in any case she

decided in that time period.

   IV. HAVING REMANDED FOR A NEW HEARING, THE COURT SHOULD NOT
                    HAVE ADDRESSED THE MERITS

       In addition to deciding Hall is entitled to a new hearing, the superior court also

addressed the merits, determining "there is sufficient admissible evidence . . . to sustain

the finding that [the police] properly admonished Hall as required by law."

       In light of the order remanding for a new hearing, the court should not have

reached this issue. There is no value in affirming a finding based on an administrative

record generated in a hearing that violated due process. Moreover, remanding for a new

hearing to determine if police properly admonished Hall would be pointless if the

superior court already decided that issue.




                                             24
       For the same reasons, it is also inappropriate for this court to address the parties'

arguments on whether there is sufficient admissible evidence to establish Hall's license

was properly revoked, and therefore we decline to do so. Whether the DMV properly

revoked Hall's license must be decided anew, in the first instance, by a fair and impartial

hearing officer, without regard to the superior court's discussion, findings, or ruling on

that issue in this case.

                                       DISPOSITION

       Let a writ issue directing the superior court to vacate its "Decision On Petition for

Writ of Mandate" and to issue a writ of mandate directing the DMV to vacate its decision

in Hall's case and to conduct a new hearing before a fair and impartial hearing officer.

       Costs are awarded to Branden Lee Hall.




                                                                                   NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



HALLER, J.




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