Filed 4/24/13 Masters v. DMV CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


WILLIAM A. MASTERS, II,                                               B242522

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. PC050467)
         v.

DEPARTMENT OF MOTOR
VEHICLES,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Randy Rhodes, Judge. Affirmed.
         William A. Masters, II, in pro. per.
         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant
Attorney General, Michael E. Whitaker and Ernesto J. Fong, Deputy Attorneys
General, Defendant and Respondent.



                                __________________________________
                                 INTRODUCTION
        William A. Masters, II filed a complaint for money damages against the
California Department of Motor Vehicles (DMV), an agency of the State of
California. The DMV moved for summary judgment, asserting immunity to the
lawsuit under various federal and state laws. The superior court granted summary
judgment in favor of the DMV. Finding no error, we affirm.


                         STATEMENT OF THE FACTS
        In late 1996, appellant moved from California to Virginia. He never filed a
change of address form with the DMV. Appellant obtained a Virginia driver’s
license, and surrendered his California driver’s license to the Virginia Department
of Motor Vehicles. The Virginia Department of Motor Vehicles mailed the license
back to the DMV. DMV records showed that on April 16, 1999, appellant was
involved in a traffic incident in San Bernardino County, California.
        On July 19, 1999, the DMV sent a notice to appellant’s last known
California address, requesting that appellant schedule and complete a medical
reexamination by August 11, 1999, as the DMV had information that he might
have a medical condition that could affect his ability to safely operate a motor
vehicle. On August 20, 1999, the DMV mailed a notice to appellant’s last known
California address, informing him that his driver’s license would be suspended as
of August 24, 1999, unless he completed a medical examination. The written
notice also informed appellant that his vehicle could be impounded if he drove it
while his license was suspended. Appellant did not submit evidence of the
requested medical examination, and the suspension took effect on August 24,
1999.




                                          2
      On January 6, 2000, the DMV received a confidential “Morbidity Report”
from the Department of Health Services, indicating that appellant had a reportable
medical condition that could affect his driving.
      On October 28, 2002, the DMV mailed another notice to appellant’s last
known California address, informing him that his driving privilege would be
suspended as of November 27, 2002, due to appellant’s failure to appear in court
and pay an outstanding traffic violation.
      In May 2008, appellant returned to California from Virginia. While driving
in Hollywood, he was pulled over for failing to completely stop at a stop sign. The
officer impounded appellant’s car because appellant was driving with a suspended
California driver’s license. Appellant paid $155 to lift the 1999 suspension, and
$960 to retrieve his vehicle. He also provided the DMV with evidence that he had
undergone a medical examination. Both the 1999 and 2002 suspensions were
lifted by May 24, 2008.
      In June 2008, appellant applied for a truck driving position with Swift
Transportation. He obtained a new California driver’s license, but was not hired.
Appellant claimed Swift informed him that it could not hire him because his
driver’s license had been suspended within the past 12 months. In November
2009, appellant attempted to obtain vehicle insurance, but was denied because he
was a “high risk” driver, as his driver’s license had been suspended for nine years.
      On March 30, 2009, appellant filed a claim with the California Victim
Compensation and Government Claims Board (CVCGCB), seeking to recover the
monies he paid to lift the suspension and retrieve his impounded vehicle. On
April 22, 2009, the CVCGCB mailed a letter to appellant, acknowledging receipt
of his “late” claim. On January 7, 2010, the CVCGCB denied the claim because it
was filed untimely. Although appellant was informed he could appeal the denial


                                            3
through a petition for a writ of mandate under Government Code section 945.4, he
never filed a petition.
      As of May 25, 2011, appellant’s DMV driving record no longer reflected his
1999 driver’s license suspension. As of August 2, 2011, his driving record no
longer reflected the 2002 license suspension.


                          STATEMENT OF THE CASE
      On March 29, 2011, appellant filed a complaint for damages against the
DMV. The complaint sought $2 million in compensatory damages and $2 million
in punitive damages for (1) negligence and (2) violation of due process under the
Fourteenth Amendment of the federal Constitution. In support of both causes of
action, appellant alleged that the DMV improperly failed to cancel his California
driver’s license in 1996 and thereafter suspended his license in 1999, without
providing him with notice and an opportunity to be heard. In the complaint,
appellant noted he had filed a complaint for damages in federal court, but that a
federal judge had “dismissed my request for financial damages citing the State’s
Eleventh Amendment protections against monetary suit in federal courts, but
allowed me to re-file for injunctive relief. . . . Having my damages barred in
[f]ederal [c]ourt, I now proceed to the [s]tate [c]ourt.” Appellant did not seek
injunctive relief; nor did he name any individual defendant.
      On May 20, 2011, the DMV filed an answer, generally denying the
allegations and asserting, as an affirmative defense, immunity under Government
                   1
Code section 815. Section 815 provides in pertinent part that “[e]xcept as
otherwise provided by statute,” “[a] public entity is not liable for an injury,

1
      All further statutory citations are to the Government Code, unless stated
otherwise.

                                           4
whether such injury arises out of an act or omission of the public entity or a public
employee or any other person.”
      On March 7, 2012, the DMV filed a motion for summary judgment. In the
motion, the DMV argued that it was immune from liability for money damages
under the doctrine of sovereign immunity, as expressly provided in sections 815
and 818.4, and under the Eleventh Amendment of the United States Constitution.
The DMV also argued (1) that the due process claim was deficient as a matter of
law because the DMV is not a “person” under Title 42 United States Code
section 1983, (2) that a negligent act is not a “deprivation” under the federal Due
Process Clause of the federal Constitution , (3) that appellant failed to exhaust his
administrative remedies by filing a timely claim with the CVCGCB before filing
his lawsuit, as required by section 945.4, and (4) that appellant failed to exhaust his
judicial remedies by failing to file a petition under section 946.6, requesting
                                                 2
excusal from the requirements of section 945.4.
      In a declaration in support of the motion for summary judgment, John F.
Maguire, a DMV employee in the licensing operations division, stated that much
of the records related to appellant’s driving records in 1996 and 1999 had been
purged from the computer system, as part of the DMV’s document policy. Based
upon a review of documents available on microfilm, Maguire stated there was no
record that appellant had filed a change of address with the DMV. Maguire further
stated the DMV’s records indicated that appellant might have a medical condition
characterized by lapses of consciousness. Accordingly, on July 19, 1999, DMV
sent a written notice to appellant’s last known California address, advising him that
2
      Section 945.4 provides that a claim must be presented to the CVCGCB
before a plaintiff can file a lawsuit against the DMV. Section 911.2,
subdivision (a) provides that a claim relating to “injury to [a] person or to personal
property” must be presented within six months after accrual of the action.

                                          5
his driver’s license would be suspended unless he completed a reexamination
before August 1999. When appellant failed to do so, his license was suspended.
Finally, Maguire asserted that “[a] holder of a California driver’s license is always
subject to California vehicle laws when driving in the State of California[,]
including any suspensions to his/her driver’s license[,] notwithstanding possession
of driver’s licenses from other states. If an individual surrenders his California
driver’s license to another state, doing so does not cancel or eliminate his/her
California driving privilege.”
      On March 28, 2012, appellant filed an opposition. He contended that
California waived its immunity by enacting section 815.6, which provides that a
public entity is liable for an injury caused by a failure to discharge a mandatory
duty. He also contended that the DMV could not claim immunity for not being a
“person” under Title 42 United States Code section 1983, because that statute
addressed only federal lawsuits by black and mulatto citizens against members of
the Ku Klux Klan for violations of their constitutional rights. He further contended
that his due process claim alleged intentional wrongdoing. He also asserted that he
had exhausted his administrative remedies by filing a timely claim, as under
section 911.2, subdivision (a), he had 12 months to file a claim with the CVCGCB
because he was not seeking compensation for an injury to his person or personal
property. Finally, he asserted that the requirements imposed by the Government
Claims Act, sections 810 et seq., were unconstitutional, as they deprived him of
equal access to the courts.
      On May 16, 2012, the DMV filed a reply, contending (1) that the Eleventh
Amendment of the United States Constitution barred the instant lawsuit, (2) that
appellant’s complaint did not allege any deliberate or intentional governmental
decisions or actions, (3) that section 818.4 expressly immunized the DMV from


                                          6
                                                                        3
damages claims relating to the suspension or revocation of licenses, (4) that there
were no mandatory duties under section 815.6 implicated in this case, and (5) that
the requirements of the Government Claims Act were constitutional.
      On June 26, 2012, the superior court granted the motion for summary
judgment. In its written order, the superior court determined that the DMV was
not subject to liability on either the negligence cause of action or the due process
cause of action. With respect to the negligence cause of action, the court found
(1) that the DMV was not subject to liability, based on the immunities under
sections 815 and 818.4; (2) that appellant failed to file a timely government claim,
in violation of section 911.2; and (3) that appellant failed to seek judicial review of
the denial of his government claim, in violation of section 946.6. With respect to
the due process cause of action, the court found (1) that the DMV could not be
sued under Title 42 United States Code section 1983 because it is not a “person”;
(2) that negligent acts were insufficient to establish liability; and (3) that appellant
could not sue the DMV for monetary damages for a claimed violation of
procedural due process rights. Appellant timely appealed.


                                    DISCUSSION
      Appellant contends the trial court erred in granting summary judgment. For
the reasons explained below, we disagree.



3
       Section 818.4 provides: “A public entity is not liable for an injury caused by
the issuance, denial, suspension or revocation of, or by the failure or refusal to
issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or
similar authorization where the public entity or an employee of the public entity is
authorized by enactment to determine whether or not such authorization should be
issued, denied, suspended or revoked.”

                                            7
       A.     Standard of Review
       “A defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can prevail.
[Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Generally,
“the party moving for summary judgment bears an initial burden of production to
make a prima facie showing of the nonexistence of any triable issue of material
fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In moving for summary judgment, “all
that the defendant need do is to show that the plaintiff cannot establish at least one
element of the cause of action -- for example, that the plaintiff cannot prove
element X.” (Id. at p. 853.)
       “‘Review of a summary judgment motion by an appellate court involves
application of the same three-step process required of the trial court. [Citation.]’”
(Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The
three steps are (1) identifying the issues framed by the complaint, (2) determining
whether the moving party has made an adequate showing that negates the
opponent’s claim, and (3) determining whether the opposing party has raised a
triable issue of fact. (Ibid.)
       “Although we independently review the grant of summary judgment
[citation], our inquiry is subject to two constraints. First, we assess the propriety of
summary judgment in light of the contentions raised in [appellant’s] opening brief.
[Citation.] Second, to determine whether there is a triable issue, we review the
evidence submitted in connection with summary judgment, with the exception of
evidence to which objections have been appropriately sustained. [Citations.]”


                                           8
(Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th
1118, 1124.)


      B.       Appellant’s Complaint
      As discussed previously, appellant sought money damages for alleged
negligence and violation of his due process rights by the DMV. The DMV sought
summary judgment, asserting that as a matter of law, appellant could not prevail on
his causes of action because the DMV was immune under various federal and state
laws. We agree.
      The United States Supreme Court has held as a matter of federal
constitutional law that sovereign immunity and the Eleventh Amendment of the
federal constitution bar private suits against a state in federal courts or state courts,
unless the state waives its immunity or Congress expressly abrogates that
immunity. (Alden v. Maine (1999) 527 U.S. 706, 729, 745-746.) Here, the State of
California has expressly not waived its immunity to lawsuits for money damages
arising from the suspension of driver’s licenses. Section 815 of the Government
Claims Act states that “[e]xcept as otherwise provided by statute,” “[a] public
entity is not liable for an injury, whether such injury arises out of an act or
                                                                             4
omission of the public entity or a public employee or any other person.” Section
818.4 specifically provides that “[a] public entity is not liable for an injury caused
by the issuance, denial, suspension or revocation of, or by the failure or refusal to




4
      The State of California and its agencies are considered public entities for the
purposes of the Government Claims Act. (§ 811.2.)


                                            9
                                                          5
issue, deny, suspend or revoke, any permit, license . . . .” Thus, appellant cannot
demonstrate that the DMV has waived its immunity to his lawsuit.
      Nor has appellant shown that Congress expressly abrogated the DMV’s
immunity to lawsuits for money damages arising from the suspension of his
driver’s license. The mere fact that one of appellant’s causes of action is a claim
for a violation of due process under the Fourteenth Amendment is insufficient to
show that the DMV’s immunity has been abrogated by Congress. That cause of
                                                                      6
action was brought under Title 42 United States Code section 1983. The United
States Supreme Court has held that by enacting Title 42 United States Code section
1983, Congress did not intend to “overturn the constitutionally guaranteed
immunity of the several States.” (Quern v. Jordan (1979) 440 U.S. 332, 342.)
Accordingly, sovereign immunity bars appellant’s claims against the DMV.
      Moreover, even were the DMV not immune to lawsuits based upon an injury
arising out of a suspension of a driver’s license, appellant cannot prevail on his
causes of action for additional and independent reasons. With respect to the cause
of action for negligence, the superior court had no jurisdiction over the claim,
because appellant did not exhaust his administrative and judicial remedies under

5
         Section 814 does permit lawsuits seeking relief “based on contract
or . . . relief other than money or damages against a public entity or public
employee.” In addition, section 825 provides that, if requested by its employee or
former employee, a public entity “shall pay any judgment” against the employee
based on “an injury arising out of an act or omission occurring within the scope of
his or her employment.”
6
       Title 42 United States Code section 1983 is not limited to causes of action
by black or mulatto citizens against members of the Ku Klux Klan. (See Monroe
v. Pape (1961) 365 U.S. 167, overruled in part by Monell v. Dep’t of Soc. Servs.
(1978) 436 U.S. 658, 695.) A procedural due process claim may be brought under
Title 42 United States Code section 1983. (Zinermon v. Burch (1990) 494 U.S.
113, 128.)

                                          10
the Government Claims Act by timely presenting a claim to the CVCGCB and
requesting relief with the superior court. (See §§ 911.2 & 945.4; see also Shirk v.
Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 [“Before suing a public
entity, the plaintiff must present a timely written claim for damages to the
              7
entity.”].)
       Appellant contends for the first time on appeal that the filing requirements of
the Government Claims Act have been abrogated or preempted by the Supremacy
                                   8
Clause of the federal Constitution. Even were we to find this argument had not
been forfeited, the superior court did not err in granting summary judgment. The
negligence cause of action is based upon state common law, not upon a federal
right. Appellant’s reliance on Smith v. Cremins (9th Cir. 1962) 308 F.2d 187
(Smith), Willis v. Reddin (9th Cir. 1969) 418 F.2d 702 (Willis), and Donovan v.
Reinbold (9th Cir. 1970) 433 F.2d 738 (Donovan) is misplaced. Those cases
addressed only the applicability of the filing requirements of the Government
Claims Act to a cause of action based upon a federal right. Smith held that causes
of action brought under Title 42 United States Code section 1983 are subject to the
three-year limitations period in Code of Civil Procedure section 338. (Smith,
supra, at p. 190.) Willis and Donovan reaffirmed Smith, and held that the
Government Claims Act could not impose timely filing requirements that restricted


7
      Although appellant disputes the determination that his claim was untimely,
he did not seek review of the CVCGCB’s decision in the superior court, and that
decision is now final.
8
       The Supremacy Clause provides in pertinent part that: “This Constitution,
and the Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” (U.S. Const., art. VI, cl. 2.)

                                          11
the limitations period. (Willis, supra, at p. 704; Donovan, supra, at p. 741.) Thus,
appellant cannot prevail on his negligence cause of action for the additional and
independent ground that he failed to meet the jurisdictional filing requirements of
the Government Claims Act.
      With respect to his due process cause of action, appellant cannot prevail for
the additional reason that the DMV is not a proper party to a suit under Title 42
United States Code section 1983. That statute provides in pertinent part that:
“Every person who, under color of any statute, ordinance, regulation, custom, or
usage of any State or Territory, . . . 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. . . .” (42 U.S.C. § 1983.) The United States Supreme Court has held
that a state and its agencies are not considered “person[s]” for purposes of a Title
42 United States Code section 1983 damages action. (Will v. Michigan
Department of State Police (1989) 491 U.S. 58, 71.) Thus, a cause of action
seeking money damages for a violation of federal due process cannot be brought
against the DMV under Title 42 United States Code section 1983. In short, the
                                                                                   9
superior court did not err in granting summary judgment in favor of the DMV.




9
       In his opening brief, appellant contends (1) that the DMV violated his
federal due process rights by not providing proper notice of its intention to suspend
his license, (2) that he alleged an intentional violation of his federal due process
rights in the complaint, and (3) that the DMV committed various discovery
violations. Regardless of the merits of these arguments, they do not alter our
conclusion that appellant cannot prevail on his causes of action against the DMV
on the grounds of sovereign immunity and lack of subject-matter jurisdiction.



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                               DISPOSITION
     The judgment is affirmed. Costs are awarded to respondent.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                MANELLA, J.


We concur:




EPSTEIN, P. J.




SUZUKAWA, J.




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