Filed 9/23/16 Deligiannis v. DMV CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THEOPHILOS LUIS DELIGIANNIS,

     Plaintiff and Appellant,                                          G051093

         v.                                                            (Super. Ct. No. 30-2013-00682822)

DEPARTMENT OF MOTOR VEHICLES,                                          OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Derek W.
Hunt, Judge. Affirmed.
                   Theophilos Luis Deligiannis, in pro. per., for Plaintiff and Appellant.
                   Kamala D. Harris, Attorney General, Chris Knudsen, Assistant Attorney
General, Kenneth C. Jones and Michelle Logan-Stern, Deputy Attorneys General, for
Defendant and Respondent.
              Theophilos Luis Deligiannis appeals from a judgment after the trial court
denied his petition for writ of mandate to set aside the DMV’s suspension of his driver’s
license. Deligiannis argues the court erred because the DMV exceeded the scope of its
authority when it suspended his license and the DMV’s failure to provide him an
administrative hearing prior to suspending his license violated his due process rights.
None of his contentions have merit, and we affirm the judgment.
                                           FACTS
              After an automated traffic enforcement camera identified Deligiannis
failing to stop at a red light, he was served with a form TR-115 alleging he violated
Vehicle Code section 21453, subdivision (a),1 and ordering him to appear at the Central
Justice Center in Santa Ana on or before March 25, 2013. The reverse side of the form
stated the following: “You must respond by following one of the procedures below by
the date on the front (see “WHEN”). If you do not, you may lose your license to drive,
and your money penalties may increase.” The form provides options depending on
whether the recipient will or will not contest the violation.2
              On March 27, 2013, a failure to appear warning letter was sent to
Deligiannis and the matter was referred to collections. In June 2013, the court imposed a
$300 civil assessment pursuant to Penal Code section 1214.1. The court also imposed a
$15 fee pursuant to section 40508.5 for violating his written promise to appear and a $10
fee pursuant to section 40508.6, subdivision (b), an administrative hold processing fee.
The court sent Deligiannis notice of the civil assessment. The court sent a failure to
appear hold form DD5 to the DMV.

1             All further statutory references are to the Vehicle Code, unless otherwise
indicated.

2             The reverse side of the form TR-115 in the clerk’s transcript does not
appear to be from Deligiannis’s notice as it does not include any of the contact
information or bail amount and includes other language and “shaded” areas suggesting
this is an example designed for local agency use.

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              In correspondence dated July 23, 2013, the DMV notified Deligiannis his
driving privilege was suspended effective August 22, 2013, pursuant to section 13365
because he violated his written promise to appear and failed to pay a fine (§ 42003,
subd. (a)). The letter stated the suspension would remain in effect until all failures to
appear (FTA) and failures to pay a fine (FTP) had been removed from his record.3 The
letter referenced an enclosed letter.
              In separate two-page correspondence dated the same day, the DMV notified
Deligiannis of an outstanding ticket for violating sections 21453, subdivision (a) (failure
to stop at a red light), and 40509.5 (failure to appear or to pay a fine). It stated he failed
to appear and owed a fine of $825. The letter explained Deligiannis could contact the
court to clear his record, or pay through the DMV.
              On August 2, 2013, Deligiannis sent correspondence to the DMV
requesting an administrative hearing to correct the DMV’s administrative and clerical
errors. He denied signing a written promise to appear or receiving a notice to appear. He
claimed he only received the letter notifying him his driver’s license was suspended. 4
Deligiannis asserted he did not fail to pay pursuant to section 42003, subdivision (a),
because there was no judgment of conviction. He asserted the DMV could not suspend
his license without notice and a hearing because a driver’s license is an interest protected
by due process rights. He also requested a stay of the license suspension pending the
hearing and decision.



3              Deligiannis requests this court take judicial notice of a DMV fast facts form
defining specified terms, specifically FTA and FTP. He references an exhibit to his
request, “Exhibit A,” but he did not attach an exhibit. We deny his request for judicial
notice, but as these terms are defined in other DMV documents elsewhere in the record,
we will use them as they are commonly accepted abbreviations.

4             Deligiannis’s return address on his August 2, 2013, letter was the same
address as the one listed on notice of traffic violation.

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              On August 24, 2013, the DMV sent Deligiannis a record request response
notifying him that pursuant to the July 23, 2013, order, “the court” suspended his driving
privileges effective August 22, 2013, for violating sections 21453, subdivision (a) (failure
to stop at a red light), and 40509.5 (failure to appear or to pay a fine), which the court
placed in failure to appear status.
              In October 2013, Deligiannis filed a petition for writ of mandate to set aside
his driver’s license suspension pursuant to Code of Civil Procedure section 1085. First,
Deligiannis argued he did not violate a written promise to appear and did not fail to pay a
fine. Second, he contended section 13365 was unconstitutional because it authorized the
DMV to suspend a driver’s license without affording the licensee an administrative
hearing. The DMV filed a respondent’s brief and lodged an administrative record.
              At a hearing on June 19, 2014, the trial court detailed the procedural history
of the case and identified the legal issues. The court admonished the deputy attorney
general that the respondent’s brief “couldn’t be less helpful” because it was not a legal
brief but instead an answer to the petition. The court continued the matter to allow the
DMV to file a brief addressing the legal issues.
              The following week, the DMV filed a supplemental brief. The DMV
argued that pursuant to section 13365 it had a mandatory duty to suspend Deligiannis’s
driver’s license based on the traffic court’s notice made pursuant to section 40509.5; the
DMV explained the electronic record cannot display punctuation marks and thus
section 40509.5 is displayed 405095. The DMV also asserted Deligiannis was not
entitled to an administrative hearing and Deligiannis could not collaterally attack a state
court conviction in a mandate proceeding against the DMV.
              At a hearing the following week, Deligiannis argued the notice of a traffic
violation did not contain his signature and thus he did not promise to appear. The court
stated the only issue before it was whether due process required the DMV to afford him
an administrative hearing before suspending his license. The court added that whether he

                                              4
violated section 40508 was an issue for the traffic court. The court concluded it would
rule by minute order. In a minute order, the court denied Deligiannis’s petition for writ
of mandate. The following month the court entered judgment for the DMV.
              Deligiannis filed a motion for new trial. Deligiannis argued the trial court’s
frequent interruptions of him during the hearing demonstrated it was biased against him.
He also asserted the court’s decision was against the law because it did not decide the
traffic matter and did not provide reasons for its decision. The DMV filed an opposition.
The DMV argued that pursuant to section 13365 it had a mandatory duty to suspend
Deligiannis’s driver’s license “based on the traffic court’s notice . . . he had violated . . .
section 40508[]” that “was provided to the DMV by the [c]ourt pursuant to . . . section
40509.5.” (Fn. omitted.) The DMV added the new trial motion was procedurally
defective, had no affidavit, and was substantively meritless, and the DMV’s suspension
was a mandatory act. Deligiannis filed a reply. There was a hearing on Deligiannis’s
new trial motion. In a minute order, the trial court denied the new trial motion.
                                        DISCUSSION
              “A writ of mandate may be issued to a public agency ‘to compel the
admission of a party to the use and enjoyment of a right or office to which he is entitled .
. . .’ [Citation.] Traditional mandamus lies ‘to correct abuses of discretion, and will lie to
force a particular action by the [agency] when the law clearly establishes the petitioner’s
right to such action.’ [Citation.] [¶] Courts exercise limited review in ordinary
mandamus proceedings. They may not reweigh the evidence or substitute their judgment
for that of the agency. They uphold an agency action unless it is arbitrary, capricious,
lacking in evidentiary support, or was made without due regard for the petitioner’s rights.
[Citations.] However, courts must ensure that an agency has adequately considered all
relevant factors, and has demonstrated a rational connection between those factors, the
choice made, and the purposes of the enabling statute. [Citation.] Because trial and
appellate courts perform the same function in mandamus actions, an appellate court

                                               5
reviews the agency’s action de novo. [Citation.]” (Sequoia Union High School Dist. v.
Aurora Charter High School (2003) 112 Cal.App.4th 185, 195.)
I. Vehicle Code
              Section 13365 provides as follows: “(a) Upon receipt of notification of a
violation of subdivision (a) or (b) of [s]ection 40508, the department shall take the
following action: [¶] . . . [¶] (2) If the notice is given pursuant to subdivision (a) or (b) of
[s]ection 40509.5, and if the driving privilege of the person who is the subject of the
notice is not currently suspended under this section, the department shall suspend the
driving privilege of the person.” (Italics added.) “‘Shall’” is mandatory. (§ 15.)
              Section 40508, subdivision (a), states the following: “A person willfully
violating his or her written promise to appear . . . is guilty of a misdemeanor regardless of
the disposition of the charge upon which he or she was originally arrested.”
Section 40508, subdivision (b), provides the following: “A person willfully failing to pay
. . . a lawfully imposed fine for a violation of a provision of this code . . . within the time
authorized by the court and without lawful excuse having been presented to the court on
or before the date the bail or fine is due is guilty of a misdemeanor regardless of the full
payment of the bail or fine after that time.”
              Section 40509.5, subdivision (a), states the following: “Except as required
under subdivision (c), if, with respect to an offense described in subdivision (e), a person
has violated his or her written promise to appear . . . , the magistrate or clerk of the court
may give notice of the failure to appear to the department for a violation of this code . . .
.” Section 40509.5, subdivision (b), provides the following: “If, with respect to an
offense described in subdivision (e), a person has willfully failed to pay a lawfully
imposed fine . . . within the time authorized by the court or to pay a fine pursuant to
subdivision (a) of [s]ection 42003, the magistrate or clerk of the court may give notice of
the fact to the department for a violation . . . .” Section 40509.5, subdivision (e), includes
any felony or misdemeanor offense.

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              Here, superior court records show the following: an automated traffic
citation charging Deligiannis with violating section 21453, subdivision (a), on August 13,
2012, was filed on February 8, 2013; the court sent Deligiannis a failure to appear
warning on March 27, 2013; the court imposed assessments and fees on June 15, 2013,
and the court notified Deligiannis of the assessment on June 17, 2013. Subsequently,
pursuant to section 40509.5 the superior court notified the DMV that Deligiannis failed to
appear and failed to pay an $825 fine. The DMV sent Deligiannis an order of suspension
because he failed to appear and/or failed to pay a fine (Evid. Code, § 664 [presumed
official duty regularly performed]). Thus, because Deligiannis’s failure to pay a fine was
a misdemeanor pursuant to section 40508, subdivision (b), and the superior court notified
the DMV of the failure to pay the fine pursuant to section 40509.5, the DMV was
required to suspend Deligiannis’s driver’s license pursuant to section 13365, subdivision
(a)(2).5 In other words, the DMV’s suspension of Deligiannis’s driver’s license was a
mandatory act when it received notification from the superior court. Thomas v.
Department of Motor Vehicles (1970) 3 Cal.3d 335, 337 (Thomas), is instructive.

5                Section 40509, subdivision (a), states as follows: “Except as required
under subdivision (c) of [s]ection 40509.5, if any person has violated a written promise to
appear . . . or violated an order to appear in court, including, but not limited to, a written
notice to appear issued in accordance with [s]ection 40518, the magistrate or clerk of the
court may give notice of the failure to appear to the department for any violation of this
code . . . .” Section 40509, subdivision (b), provides as follows: “If any person has
willfully failed to pay a lawfully imposed fine within the time authorized by the court . . .
the magistrate or clerk of the court may give notice of the fact to the department for any
violation . . . .” Section 40518 governs violations recorded by the automatic traffic
enforcement system.
                 The superior court gave the DMV notice of both Deligiannis’s failure to
appear and failure to pay a fine. However, only the failure to pay a fine pursuant to
section 40509.5, subdivision (b), demonstrates facts for a violation of section 40508,
subdivision (b), thereby triggering the DMV’s mandatory duty to suspend.
                 Section 40509.5, subdivision (a), does not notify the DMV of facts for a
violation of section 40508, subdivision (a), because the failure to appear was not pursuant
to a written promise to appear but pursuant to section 40518 involving violations
recorded by the automatic traffic enforcement system.

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              In Thomas, supra, 3 Cal.3d at page 337, the California Supreme Court
addressed the proper procedure for challenging the validity of a conviction the DMV
relied on to suspend petitioner’s driver’s license. Petitioner was convicted in 1966,
without representation by counsel, of driving under the influence, and in 1968 he was
convicted of the same offense, with the assistance of counsel. (Id. at p. 337.) Relying on
its earlier decision, the court stated petitioner could have attacked the validity of the 1966
conviction in the course of the proceedings arising in 1968, because the 1966 conviction
served as a basis for increasing the penal sanctions imposed against him in the 1968
proceedings. (Id. at pp. 337-338.) The Thomas court added, however, the DMV’s act of
suspending petitioner’s driver’s license pursuant to section 13352 was merely an
“administrative act in performing a mandatory function” and the DMV, having received
abstracts of judgments for petitioner’s two prior convictions of driving under the
influence, was required to suspend his driving privilege without having a duty to decide
the validity of the prior convictions. (Thomas, supra, 3 Cal.3d at p. 338.) The Thomas
court concluded that when the DMV suspends a driver’s license upon the driver’s
conviction of driving under the influence of alcohol, and the driver seeks to challenge the
license suspension upon the ground the conviction was constitutionally infirm, the driver
may not raise such a claim in the first instance by seeking a writ of mandate against the
DMV, but first must successfully challenge the validity of the conviction in the court in
which it was rendered or in a mandate proceeding directed at the rendering court. (Id. at
pp. 338-339; Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380
(Pollack) [driver who contests validity of prior conviction entitled to challenge
conviction in rendering court system]; see Larsen v. Department of Motor Vehicles
(1995) 12 Cal.4th 278, 278 [reaffirming Thomas for out-of-state convictions].)




                                              8
              Deligiannis asserts he did not suffer a judgment of conviction and thus
there can be no fine. Based on Thomas, Deligiannis should have either challenged the
validity of the conviction in traffic court or in a mandate proceeding directed at the traffic
court. His mandate action against the DMV in the first instance was improper.
B. Due Process
              Section 14101 provides in relevant part, “A person is not entitled to a
hearing . . . [¶] (a) If the action by the department is made mandatory by this code.”
(Pollack, supra, 38 Cal.3d at p. 381 [rejecting due process claim where Legislature
intended license revocation to follow administratively from record of convictions].) In
People v. Bailey (1982) 133 Cal.App.3d Supp. 12, 14 (Bailey), the court addressed the
issue of whether the DMV was required to provide a driver with a hearing when
suspending the driver’s license for a FTA. The Bailey court held, “[i]t would be a legal
absurdity to require the [DMV] to grant a hearing on the question of whether a person did
in fact violate his written promise to appear on a traffic citation, when the court where
appearance was required has already made such a finding. (See . . . § 40509, subd. (a).)
If the defaulting citee has a valid excuse for his nonappearance, the place to submit his
explanation is in the court, not before the [DMV].” (Bailey, supra, 133 Cal.App.3d Supp.
at p. 15, fn. omitted.) Pursuant to Bailey, if Deligiannis believed his fine was unlawful,
or his nonappearance excused, the proper place to make his case was in traffic court.
              Still, due process may require a hearing even when the applicable statute
does not. Even under section 14101 a driver whose license is suspended pursuant to a
statute making suspension mandatory is entitled to “a prompt hearing before a
representative of the DMV if he believes his suspension is based on inaccurate DMV
records.” (Pollack, supra, 38 Cal.3d at p. 380, fn. omitted.)




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              In determining what process is due, the court balances “three distinct
factors: (1) the private interest affected by the official action; (2) the risk of an erroneous
deprivation of that interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and (3) the government’s interest,
including the function involved and the financial and administrative burdens which
would be entailed by additional safeguards. [Citations.]” (Peretto v. Department of
Motor Vehicles (1991) 235 Cal.App.3d 449, 460.) The driving privilege is fundamental.
(Cinquegrani v. Department of Motor Vehicles (2008) 163 Cal.App.4th 741, 750.)
              The risk of an erroneous deprivation without an administrative hearing is
minimal when the license has been suspended in conformance with section 13365, and
there is no showing the DMV’s records were inaccurate. Deligiannis’s petition was not
supported by sufficient admissible evidence establishing the fine was arbitrary or
capricious or that paperwork reflecting his fine was sent to the DMV in error.
              Deligiannis argues the superior court did not report he owes a fine and his
DMV record does not reflect he owes a fine. We disagree. In its July 23, 2013, letter, the
DMV notified Deligiannis he owed a fine in the amount of $825. As to his DMV
records, they are lengthy and admittedly difficult to decipher. It is true that just above the
entry for the violation at issue here it states, “FTP: NONE*.” However, just above that
entry, it states, “UPDATED: 01-09-13,” before the deadline for him to appear. More
importantly, below the information regarding the violation at issue here it states, “FINE
AMOUNT DUE $825.” Therefore, based on Deligiannis’s DMV records and the DMV’s
July 23, 2013, letter the record supports the conclusion Deligiannis owed a $825 fine.
              Deligiannis also claims the superior court did not notify the DMV that he
violated section 40508. We disagree. The superior court notified the DMV that
Deligiannis violated section 40509.5. As we explain above, section 40509.5 authorizes
the superior court to give notice to the DMV of failures to appear (subd. (a)), and failure
to pay a fine (subd. (b)). Through this notice, the superior court notifies the DMV a

                                              10
person unlawfully failed to appear (§ 40508, subd. (a)), or unlawfully failed to pay a fine
(§ 40508, subd. (b)). Therefore, in effect the superior court notified the DMV that
Deligiannis unlawfully failed to pay a fine and thus violated section 40508. That
Deligiannis’s DMV record shows other violations of section 40508 does not establish the
superior court erred by giving improper notice.
              Requiring administrative hearings on all suspensions made pursuant to
section 13365 would entail undue financial and administrative burdens. On the other
hand, in the rare case when it appears the DMV’s paperwork is inaccurate or there is an
issue of mistaken identity providing administrative hearings in these limited situations
does not impose any significant administrative burden or cost on the state.
              Deligiannis relies on City of Redmond v. Moore (Wash. 2004) 91 P.3d 875,
878, 882 (City of Redmond), which found similar Washington statutes facially
unconstitutional, and a foundation report to argue the DMV denied him due process.
California courts are not bound by out-of-state authorities (Century-National Ins. Co. v.
Garcia (2011) 51 Cal.4th 564, 571), and Deligiannis’s reliance on another state court’s
interpretation of its statutes does not carry the day. Deligiannis has not met his “heavy
burden” of establishing section 13365 is facially unconstitutional. (U.S. v. Salerno
(1987) 481 U.S. 739, 745 [“heavy burden” to demonstrate statute facially
unconstitutional].) With respect to the foundation report, which details the impact of
driver’s license suspensions, it too is unpersuasive. Deligiannis’s remedy was to
challenge his violation in traffic court or in a mandate proceeding against the traffic
court, not to proceed against the DMV. Because Deligiannis did not allege any facts
which, if true, would mean the DMV was not required to suspend his license, due process
did not require the DMV to provide him an administrative hearing prior to suspending his
license.




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                                DISPOSITION
          The judgment is affirmed. The DMV shall recover its costs on appeal.




                                           O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.




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