Filed 3/2/18
                  CERTIFIED FOR PUBLICATION

    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                           DIVISION FOUR


CALIFORNIA DUI LAWYERS                     B278092
ASSOCIATION et. al.,
                                           (Los Angeles County
        Plaintiffs and Appellants,         Super. Ct. No.BC553552)


        v.

CALIFORNIA DEPARTMENT OF
MOTOR VEHICLES et. al.,

        Defendants and Respondents.



      APPEAL from a judgment of the Superior Court of
Los Angeles County, Rita J. Miller, Judge. Reversed with
directions.
      Law Office of Robert S. Gerstein, Robert S. Gerstein; Law
Office of Joshua C. Needle, Joshua C. Needle for Plaintiffs and
Appellants.
      Xavier Becerra, Attorney General, Chris A. Knudsen
Assistant Attorney General, Jacqueline P. Hoang and Gary S.
Balekjian, Deputy Attorneys General, for Defendants and
Respondents.
                         INTRODUCTION
       The California DUI Lawyers Association and attorney
Stephen R. Mandell (collectively, CDLA) brought a taxpayer
action against the California Department of Motor Vehicles and
Jean Shiomoto, director of the Department (collectively, DMV).
CDLA alleged that the DMV conducts administrative hearings to
determine whether automatic suspension of a driver’s license is
warranted after the driver has been arrested for driving under
the influence. CDLA alleged that at these hearings, the hearing
officers simultaneously act as advocates for DMV and as triers of
fact. CDLA alleged that the lack of a neutral hearing officer
violates drivers’ rights to procedural due process under the
California and United States Constitutions.
       In deciding motions for summary judgment filed by both
parties, the trial court held that CDLA did not have taxpayer
standing to assert its claims. The court granted DMV’s motion
for summary judgment on that basis, and denied CDLA’s motion
for summary judgment. The trial court did not address the
substance of CDLA’s claims. CDLA appealed, and we reverse.
Taxpayer standing under Code of Civil Procedure section 526a is
appropriate under the circumstances of this case, in which a
group of taxpayers has alleged that a government entity is
engaging in “waste” by implementing and maintaining a hearing
system that violates drivers’ procedural due process rights. We
therefore reverse the judgment and remand the case for further
proceedings.
       FACTUAL AND PROCEDURAL BACKGROUND
A.     Statutory background
       This action involves the “administrative per se” or “APS”
system used to suspend a driver’s license following an arrest for




                                2
driving under the influence. “Under the administrative per se
law, DMV must immediately suspend the driver’s license of a
person who is driving with .08 percent or more, by weight, of
alcohol in his or her blood. ([Veh. Code,] § 13353.2, subd. (a)(1).)
The procedure is called ‘administrative per se’ because it does not
impose criminal penalties, but simply suspends a person’s
driver’s license as an administrative matter upon a showing the
person was arrested for driving with a certain blood-alcohol
concentration . . . .” (MacDonald v. Gutierrez (2004) 32 Cal.4th
150, 155.)
       “When a driver is arrested for driving under the influence
and is determined to have a prohibited blood-alcohol content
(BAC), the arresting officer or DMV serves the driver with a
‘notice of [an] order of suspension or revocation’ of his or her
driver’s license, advising that the suspension will become
effective 30 days from the date of service. (Veh. Code, §§ 13353.2,
subds. (b) & (c); 13353.3, subd. (a).) The notice explains the
driver’s right to an administrative hearing before the effective
date of the suspension if the driver requests a hearing within 10
days of receipt of the notice. (Id., §§ 13353.2, subd. (c); 13558,
subd. (b).)” (Brown v. Valverde (2010) 183 Cal.App.4th 1531,
1536-1537 (Brown).)
       At the hearing, “[t]he sole task of the hearing officer is to
determine whether the arresting officer had reasonable cause to
believe the person was driving, the driver was arrested, and the
person was driving with a BAC of 0.08 percent or higher. If the
hearing officer determines that the evidence establishes these
three facts by a preponderance of the evidence, the license will be
suspended. (Veh. Code, §§ 13558, subd. (c)(1); 13557, subd. (b)(2);
14104.2, subd. (a).” (Brown, supra, 183 Cal.App.4th at pp. 1537-




                                 3
1538 [fn. omitted].) DMV bears the burden of proof. (Petrus v.
State Dept. of Motor Vehicles (2011) 194 Cal.App.4th 1240, 1244
(Petrus).)
B.     CDLA’s complaint
       CDLA filed a complaint on August 1, 2014, alleging that
the APS hearing system is unfair and unconstitutional. CDLA
alleged that continued possession of a driver’s license is a vital
property right that cannot be suspended without due process of
law. According to the complaint, “[T]he APS system . . . requires
the Hearing Officers to act both as advocate for the DMV and
arbiter/decision maker, creating an obvious and inherent conflict
of interest and bias favoring one party over the other.” CDLA
alleged that as a result, the “APS hearings violate the State and
Federal Due Process rights . . . of license holders by failing to
provide a fair, neutral and impartial Hearing Officer.” In
addition, “the APS system unconstitutionally allows DMV
managers, executives, and/or administrators ex parte
communications with the Hearing Officers and direct control over
the decision-making process.” CDLA asserted that “[t]hese
procedures and practices are unconstitutional on their face and
as applied.”
       CDLA alleged that according to DMV written materials,
the hearing officer at each APS hearing acts as investigator,
advocate for DMV, and factfinder. CDLA’s complaint noted that
California’s Administrative Procedure Act (APA) (Gov. Code,
§ 11340 et seq.) states that a person may not serve as a presiding
officer in an adjudicative proceeding where “[t]he person has
served as investigator, prosecutor, or advocate in the proceeding
or its preadjudicative stage,” or “[t]he person is subject to the
authority, direction, or discretion of a person who has served as




                                4
investigator, prosecutor, or advocate in the proceeding or its
preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1) &
(2).) However, the Vehicle Code “specifically exempts the APS
adjudicative hearings from the prophylactic separation of
functions mechanism set forth in the APA.” CDLA also alleged
that hearing officers’ “initial . . . decision to set aside a
suspension is subject to ex parte review, criticism, and unilateral
reversal” by DMV management, “prior to it being issued to the
licensee, without notice or input from the licensee.”
       CDLA stated that it is “a non-profit association of
California lawyers who defend those accused of driving under the
influence.” It alleged that its members “reside, practice, and pay
property taxes in Los Angeles County and throughout the State
of California.” Individual plaintiff Mandell is a licensed attorney,
not a member of CDLA, who also paid property taxes in Los
Angeles County.
       CDLA asserted three causes of action: violation of 42 U.S.C.
§ 1983 (section 1983) affecting due process rights under the
Fourteenth Amendment to the United States Constitution,
violation of due process rights under California Constitution
Article I, Section 7, and “illegal expenditure of funds.” CDLA
sought declaratory and injunctive relief, costs, and attorney fees.
C.     CDLA’s motion for summary judgment
       CDLA and DMV each moved for summary judgment. We
address CDLA’s motion first.
       CDLA asserted that DMV had admitted the following facts
in discovery: APS hearings are “adversarial” and “adjudicative”;
the hearing officer’s role at an APS hearing is “trier of fact as well
as an advocate for the department and driver safety”; and a
hearing officer’s APS decision is subject to review by a manager,




                                  5
and subject to alteration by that manager, without notice to a
driver or the driver’s attorney.
       CDLA argued that continued possession of a driver’s
license was a fundamental property right that could not be
suspended or revoked without due process protections. It
asserted that the combination of advocate and adjudication roles
in a single, subordinate DMV employee violated required due
process protections. CDLA pointed to the provision of the APA
that bars a person from serving as a presiding officer in an
adjudicative proceeding if that person “has served as
investigator, prosecutor, or advocate in the proceeding or its
preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1).)
CDLA noted that Vehicle Code section 14112, subdivision (b),
specifically exempts APS hearings from this requirement:
“Subdivision (a) of Section 11425.30 of the Government Code does
not apply to a proceeding for issuance, denial, revocation, or
suspension of a driver’s license pursuant to this division.” (Veh.
Code, § 14112, subd. (b).)
       CDLA argued, “Exceeding their statutory license under
Veh. C. § 14112(b), and their constitutional obligations, DMV has
designed and implemented the current APS system where the
presiding Driver Safety Hearing Officer is (1) subordinate to the
ex parte command influence of the Department and (2) acts as
both adjudicator and advocate for the Department.” CDLA
argued that these procedures were constitutionally inadequate as
applied, and “[i]f the Department responds that this system is
what the Legislature mandated or is the only one they can
devise[,] then the statutory exemption is constitutionally infirm
on its face.”




                                6
       With its motion, CDLA submitted evidence including
DMV’s Driver Safety Manual (which CDLA characterized as “an
important reference tool for the Drive[r] Safety Hearing Officers
in the conduct of their jobs”); an article in which DMV describes
the APS system; legislative history for the APA statutory scheme;
excerpts of deposition transcripts of two DMV employees; and the
DMV’s responses to written discovery requests.
D.     The DMV’s motion for summary judgment
       In its motion for summary judgment, DMV asserted that
the first cause of action based on section 1983 and the second
cause of action based on the California Constitution failed
because CDLA was not directly affected by the APS system and
therefore lacked standing to challenge it. DMV also contended
that with respect to all three causes of action, CDLA could not
assert taxpayer standing because the challenged conduct
complied with the Vehicle Code and was therefore legal, and
CDLA’s disagreement with the manner in which DMV chose to
apply the law could not provide a basis for taxpayer standing.
       DMV also sought summary judgment or summary
adjudication on the merits for each cause of action. It argued that
the section 1983 cause of action lacked merit because the dual
rules of APS hearing officers as advocate and trier of fact did not
violate drivers’ procedural due process rights. DMV also asserted
that drivers’ due process rights were protected because drivers
whose licenses were suspended or revoked could petition for writs
of mandate in superior court. DMV further argued that a section
1983 claim could not be brought against a state entity, and
Shiomoto, as Director of that agency, was immune from liability.
In addition, DMV asserted that the second cause of action based
on the California Constitution failed because such claims could




                                7
not be asserted as freestanding causes of action. The DMV
contended the third cause of action for illegal expenditure of
funds failed because the DMV had a “legitimate business interest
in managing its hearing officer employees.”
       The DMV submitted evidence with its motion, including
written discovery requests to CDLA and Mandell; CDLA’s and
Mandell’s responses to the discovery requests, and excerpts from
the depositions of Mandell and CDLA representative Chad
Maddox. This evidence focused on standing-related issues.
E.     The parties’ oppositions to the motions for summary
       judgment
       The parties opposed each others’ motions. DMV argued
that CDLA’s motion and separate statement were procedurally
deficient. It also argued that CDLA lacked standing for the same
reasons asserted in the DMV’s motion for summary judgment.
DMV also repeated its arguments that the APS hearing process
did not violate due process requirements, and therefore the cause
of action under section 1983 failed. DMV asserted that CDLA
filed to submit any evidence of actual bias, and its “claim of
actual bias is supported by largely inadmissible, irrelevant, and
mischaracterized evidence.” DMV also contended that
communications between hearing officers and DMV managers did
not constitute impermissible ex parte communications. DMV
repeated arguments from its motion that due process is provided
through judicial review, the section 1983 claims could not be
asserted against a state entity or Shiomoto, the claim based on
the California Constitution was improper, and that DMV had a
legitimate business interest in managing its employees.
       DMV submitted evidence in support of its opposition,
including excerpts from the deposition of Brian Dawson, a




                               8
regional manager for DMV. Dawson said that managers do not
“typically” review hearing officers’ work before their decisions are
mailed, but if a hearing officer was having trouble reaching a
decision the officer might meet with a manager to discuss the
case. Dawson’s office once had a policy of reviewing all “set
asides”—decisions in which the hearing officer set aside the
suspension instead of affirming it. DMV also submitted excerpts
from the deposition of DMV hearing officer Cecelia Bethel, who
testified that hearing officers review evidence to determine
whether the paperwork alone is sufficient or whether it is
necessary to subpoena the arresting officer. Another witness,
hearing officer Patrice Sims, testified that managers do not tell
hearing officers how to decide cases.
       CDLA’s opposition to DMV’s motion repeated the
arguments in CDLA’s motion that the procedures of APS
hearings violated due process protections and were
unconstitutional, both facially and as applied. CDLA asserted
that subsequent judicial review did not “negate the constitutional
mandate to provide due process in the first instance.” CDLA
asserted that it had standing as a group of taxpayers and as a
real party in interest. CDLA also argued that Shiomoto was not
immune from liability under section 1983, and that the California
Constitution supported the claim for injunctive and declaratory
relief. Finally, CLDA asserted that DMV’s interest in managing
its employees did not override its duty to provide due process
protections to drivers facing APS hearings.
       CDLA submitted several deposition excerpts with its
opposition. For example, CDLA submitted excerpts from the
deposition testimony of DMV hearing officer Patrice Sims, who
recalled one hearing in which she found the police officer’s




                                 9
testimony regarding probable cause to be not credible. She set
aside the driver’s suspension on that basis, but before the
decision was sent to the driver, Sims’s supervisors required her to
change her decision to affirm the suspension. When Sims
protested that she did not agree with the amended result, she
was punished in that she was written up, sent to repeat the
training in Sacramento required of all new hearing officers,
placed on probationary status, and she lost status and
advancement opportunities within DMV. CDLA also submitted
excerpts from the deposition of DMV hearing officer Cecelia
Bethel, who testified that in APS hearings, drivers have the
burden of proof: “He [the driver] asked for the hearing,” so
“[t]hat’s his burden to show the suspension is not warranted.”
Bethel also said that when she continued a hearing for good
cause to allow the defense to present additional evidence, her
supervisor told her that continuances were not allowed. Bethel
recalled that she was reprimanded regarding the continuances.
Bethel also said she had worked at DMV offices “where managers
said no set asides.” A third hearing officer, Joanne Serna,
testified that the hearing officer prepares DMV’s case, and if the
driver rebuts the evidence presented by DMV, the hearing officer
grants DMV a continuance to gather additional evidence. Serna
said requests for continuances and additional evidence are often
denied, and supervisors tell her that suspensions can be
sustained without the additional evidence. Serna was written up
for having too many set asides; the write-up letter compares her
rates to “the office average,” advises Serna to review her cases
more thoroughly, and suggests that if “this problem is due to
outside distractions,” the employee assistance program is




                                10
available. Each of these hearing officers testified that the
hearing officer’s role is both advocate for the DMV and factfinder.
       The parties each filed replies. The DMV also objected to
portions of the evidence CDLA filed with its motion and
opposition.
F.     Hearing and court ruling
       The court issued a written tentative ruling stating that it
was inclined to grant DMV’s motion and deny CDLA’s motion on
the basis that CDLA lacked standing.
       The court stated that CLDA did not have standing to assert
the first and second causes of action as real parties in interest
because it was not alleging that its (or its members’) due process
rights were directly violated. It noted that CDLA alleged in its
complaint that its members are required to spend more time and
money as a result of the unfairness of the APS system, and
stated, “the DMV has shifted the burden of proof to the plaintiffs
on this issue and the plaintiffs have submitted no evidence to
support the allegation.”
       The court held that CDLA did not have taxpayer standing
to assert the third cause of action for illegal expenditure of funds
under Code of Civil Procedure section 526a (section 526a). That
section allows a taxpayer to bring an action to challenge “any
illegal expenditure” or “waste” of government funds. The court
noted that a “cause of action under Code of Civil Procedure
section 526a will not lie where the challenged governmental
conduct is legal.” (Coshow v. City of Escondido (2005) 132
Cal.App.4th 687, 714 (Coshow).)
       The court reasoned that the statutes governing the APS
procedure did not require that a hearing office be both advocate
and trier of fact. The court said, “Plaintiffs’ challenge is not to




                                11
the legality of the statutes themselves, but rather, to the manner
in which DMV implements the statutory scheme. . . . [A] taxpayer
does not have standing to challenge the manner in which a
governmental body implements an otherwise valid statute.” The
court also stated, “It is possible that the manner in which DMV is
implementing the statute violates due process of law. But it is
the manner in which DMV is implementing it, rather than the
statute itself, that arguably violates the law. Taxpayers do not
have standing to challenge the manner of implementation, which
is what the plaintiffs are attempting to do here.”
      The court concluded that because CDLA did not have
standing, DMV’s motion for summary judgment should be
granted. The court held that in light of its ruling on DMV’s
motion, CDLA’s motion for summary judgment was denied
because CDLA lacked standing.
      CDLA moved for a new trial, arguing that the court’s
standing ruling was erroneous. The DMV opposed the motion.
The court denied the motion, and judgment was entered in favor
of DMV. CDLA timely appealed.
                            DISCUSSION
A.    Standing under section 526a
      The trial court held that CDLA had neither taxpayer
standing under section 526a, nor standing as a real party in
interest. CDLA does not challenge the court’s finding regarding
real-party-in-interest standing, and asserts that only taxpayer
standing is relevant on appeal. DMV also acknowledges that
only taxpayer standing is relevant. We therefore address only
taxpayer standing.1

      1The trial court did not address the question of taxpayer
standing with respect to the first or second causes of action.



                               12
       Section 526a states in relevant part, “An action to obtain a
judgment, restraining and preventing any illegal expenditure of,
waste of, or injury to, the estate, funds, or other property of a
county, town, city or city and county of the state, may be
maintained against any officer thereof, or any agent, or other
person, acting in its behalf, either by a citizen resident therein, or
by a corporation, who is assessed for and is liable to pay, or,
within one year before the commencement of the action, has paid,
a tax therein.”
       “However strict the concept of standing may be in other
contexts, it has been considerably relaxed by section 526a.”
(Chiatello v. City and County of San Francisco (2010) 189
Cal.App.4th 472, 481 (Chiatello).) “This relaxation is a
consequence of the salutary goal of section 526a: ‘The primary
purpose of this statute, originally enacted in 1909, is to “enable a
large body of the citizenry to challenge governmental action
which would otherwise go unchallenged in the courts because of
the standing requirement.” [Citation.] [¶] California courts have
consistently construed section 526a liberally to achieve this
remedial purpose.’” (Ibid.)
       “Both standing and the interpretation of statutes are
questions of law to which we typically apply a de novo standard
of review.” (San Luis Rey Racing, Inc. v. California Horse Racing
Board (2017) 15 Cal.App.5th 67, 73.) Here, the facts relevant to
taxpayer standing are not in dispute, and therefore we consider
the issue de novo.


Nonetheless, we may consider the issue for the first time on
appeal. (See, e.g., Steadman v. Osborne (2009) 178 Cal.App.4th
950, 954-955 [“It is well settled that a party may raise the issue
of standing for the first time on appeal.”].)



                                 13
       DMV challenges CDLA’s standing under 526a on two bases:
CDLA has not demonstrated an “illegal expenditure” or “waste”
under the statute, and the hearing procedure would not
“otherwise go unchallenged” in the absence of this taxpayer
action. We address the waste issue first.
       1.    Illegal expenditures or waste
       Case law has made clear that “waste” does not encompass
discretionary governmental action. “[A] taxpayer is not entitled
to injunctive relief under Code of Civil Procedure section 526a
where the real issue is a disagreement with the manner in which
government has chosen to address a problem.” (Coshow, supra,
132 Cal.App.4th at p. 714.) Thus, “the term ‘waste’ as used in
section 526a means something more than an alleged mistake by
public officials in matters involving the exercise of judgment or
wide discretion.” (Sundance v. Municipal Court (1986) 42 Cal.3d
1101, 1138.)
       DMV argues that taxpayer standing is lacking because “the
Vehicle Code requires that the APS hearing officer be a DMV
employee, and the DMV has discretion in how it applies Vehicle
Code section 14112, subdivision (b) to the officer role.”2 CDLA
asserts that it is challenging “a hearing structure that by its very


      2 Vehicle Code section 14104.2, subdivision (a) states, “Any
hearing shall be conducted by the director or by a hearing officer
or hearing board appointed by him or her from officers or
employees of the department.” Vehicle Code section 14112,
subdivision (b) states, “Subdivision (a) of Section 11425.30 of the
Government Code does not apply to a proceeding for issuance,
denial, revocation, or suspension of a driver's license pursuant to
this division.” Government Code section 11425.30, subdivision (a)
is the APA provision stating that anyone serving as an
investigator may not also act as a presiding officer in a hearing.



                                14
nature violates drivers’ due process rights, which no
governmental agency has discretion to do.” Indeed, “it is
unquestionably waste for government to budget or spend money
administering an illegal ordinance.”
       If the APS system violates drivers’ due process rights, as
CDLA alleges, it is illegal and a waste under section 526a. “A
driver’s license cannot be suspended without due process of law.”
(Cinquegrani v. Department of Motor Vehicles (2008) 163
Cal.App.4th 741, 750; see also Petrus, supra, 194 Cal.App.4th at
p. 1244; see also Nightlife Partners v. City of Beverly Hills (2003)
108 Cal.App.4th 81, 90 (Nightlife Partners) [“The protections of
procedural due process apply to administrative proceedings . . . ;
the question is simply what process is due in a given
circumstance.”].) “‘The essence of due process is the requirement
that “a person in jeopardy of serious loss [be given] notice of the
case against him and opportunity to meet it.”’ [Citations.] The
opportunity to be heard must be afforded ‘at a meaningful time
and in a meaningful manner.’ [Citations.] To ensure that the
opportunity is meaningful, the United States Supreme Court and
[the California Supreme Court] have identified some aspects of
due process as irreducible minimums. For example, whenever
‘due process requires a hearing, the adjudicator must be
impartial.’” (Today’s Fresh Start, Inc. v. Los Angeles County
Office of Educ. (2013) 57 Cal.4th 197, 212.) In other words, “Due
process . . . always requires a relatively level playing field, the
‘constitutional floor’ of a ‘fair trial in a fair tribunal,’ [is] a fair
hearing before a neutral or unbiased decision-maker.” (Nightlife
Partners, supra, 108 Cal.App.4th 81, 90 (emphasis in original).)
       Due process guarantees apply to the APS system with
respect to drivers’ license suspensions. (See, e.g., Hall v. Superior




                                   15
Court (2016) 3 Cal.App.5th 792, 808-809 [“ ‘[T]he constitutional
guarantee of due process of law requires a fair tribunal’” for an
APS hearing.].) In other contexts, courts have found that lack of a
neutral factfinder or ex parte communications between the
decision-maker and other agency employees may render an
administrative hearing unfair. (See, e.g., Department of Alcoholic
Beverage Control v. Alcoholic Beverage Control Appeals Bd.
(2006) 40 Cal.4th 1, 10 [“Procedural fairness does not mandate
the dissolution of unitary agencies, but it does require some
internal separation between advocates and decision makers to
preserve neutrality”]; Howitt v. Superior Court (1992) 3
Cal.App.4th 1575, 1585 [in an employment appeal involving a
deputy sheriff, combining advocacy and decision-making roles “is
inconsistent with true objectivity, a constitutionally necessary
characteristic of an adjudicator”]; Rondon v. Alcoholic Beverage
Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1289 [decision-
makers’ practice of reviewing hearing reports prepared by
prosecuting attorneys after the hearing but before issuing final
decisions violated the APA’s prohibitions against ex parte
communications and use of extra-record information]; Nightlife
Partners, supra, 108 Cal.App.4th at p. 94 [city attorney’s “role as
advisor to the decision-maker” regarding denial of the plaintiff’s
regulatory permit “violated petitioners’ right to due process”
because the attorney “acted as both an advocate of City’s position
and as advisor to the supposedly neutral decision-maker”].)
       DMV acknowledged in discovery that DMV is a party to an
APS hearing, the hearing is adversarial, and the hearing officer’s
role involves both advocating on behalf of DMV and acting as
factfinder. CDLA asserts that this violates the irreducible
minimums of procedural due process, and is therefore illegal.




                                16
CDLA has thus asserted a claim of waste that fits the parameters
of section 526a.
       DMV argues that CDLA does not have standing because
the APS system is “legal.” It asserts that “DMV hearing officer’s
role as decisionmaker and advocate is authorized by both statute
and case law,” and therefore taxpayer standing is unavailable.
CDLA counters that this argument is circular: “The DMV is
arguing that CDLA has standing to challenge the DMV for due
process violation, illegality, or wastefulness, only if it first proves
that the DMV violates due process, acts illegally, or is wasteful.
The circularity of that reasoning condemns itself.”
       We agree with CDLA: the DMV’s argument that the
allegedly unconstitutional action is “legal” seeks to limit
standing—a threshold issue—based on a substantive
determination of the ultimate issue in this case. “‘The
fundamental aspect of standing is that it focuses on the party
seeking to get his complaint before a . . . court and not on the
issues he wishes to have adjudicated.’” (Harman v. City and
County of San Francisco (1972) 7 Cal.3d 150, 159.)
       Cases that challenge the legality or constitutionality of
governmental actions fall squarely within the purview of section
526a. In Blair v. Pitchess (1971) 5 Cal.3d 258, for example, the
Supreme Court considered the constitutionality of “California’s
claim and delivery law”—a series of statutes allowing a plaintiff
to have a sheriff seize property from a defendant before any
adjudication of the issues between the parties. (Id. at p. 265-
266.) Plaintiff taxpayers filed an action against Los Angeles
County and others, alleging that the claim and delivery law was
unconstitutional. The defendants asserted that the plaintiffs
lacked standing, but the court rejected this argument: “It is clear




                                  17
that the present action was properly brought under section 526a.
Plaintiffs have alleged, and by their affidavits have established,
that they are residents and taxpayers of the County of Los
Angeles. . . . If the claim and delivery law is unconstitutional,
then county officials may be enjoined from spending their time
carrying out its provisions.” (Id. at p. 269.)
       County of Santa Clara v. Superior Court (2009) 171
Cal.App.4th 119 presents another example in which section 526a
standing was appropriate to challenge the legality of government
actions. In that case, the plaintiffs alleged that the government
entity defendants mishandled “requests for specifically described
types of public records.” (Id. at p. 124.) The plaintiffs alleged
that the defendants’ “‘policies and practices are illegal, in that
they do not comply with state law regarding access to public
records, including but not limited to, the California Public
Records Act (‘CPRA’), Health and Safety Code section 11495,
Government Code section 12525, and the Political Reform Act.’”
(Ibid.) The court held standing under section 526a was
appropriate to challenge the government’s actions: “The purpose
of the CPRA is furthered, not obstructed, by citizen suits under
Code of Civil Procedure section 526a to enforce the CPRA’s
provisions.” (Id. at p. 130; see also Hector F. v. El Centro
Elementary School District (2014) 227 Cal.App.4th 331, 342 (“The
public interest in enforcing [California] antidiscrimination and
antiharassment statutes also provides . . . standing to bring a
taxpayer action under Code of Civil Procedure section 526a.”].)
       DMV’s position that CDLA lacks standing because the
DMV’s actions are “legal” is based on cases that are factually
inapposite. For example, DMV cites Lyons v. Santa Barbara
County Sheriff’s Office (2014) 231 Cal.App.4th 1499 (Lyons), in




                               18
which the plaintiff was evicted from her home following a
nonjudicial foreclosure. The plaintiff then sued the local sheriff’s
department, the county recorder, and various employees of those
entities, asserting that they unlawfully participated in the
foreclosure process. In holding that defendants’ demurrer was
properly sustained, the Court of Appeal said the complaint was “a
misguided section 526a collateral attack on the unlawful detainer
judgment,” and the plaintiff did not have taxpayer standing
under section 526a. The Court of Appeal agreed with the trial
court’s assessment that “‘the [recorder’s] office is under a
mandatory duty to accept the paperwork that’s filed with it. It
has no independent duty to determine whether or not that
paperwork is fraudulent. Moreover, when the sheriff serves a
writ of execution that’s by order of the court. The sheriff has no
discretion to refuse to serve that order.’” (Id. at p. 1502.) The
court noted, “A taxpayer action does not lie where the challenged
governmental conduct is legal.” (Id. at p. 1503.)
       DMV also cites Lucas v. Santa Maria Public Airport Dist.
(1995) 39 Cal.App.4th 1017 (Lucas), in which the plaintiff alleged
that the defendant “entered into an employment contract with its
general manager.” (Id. at p. 1021.) The plaintiff conceded that
the manager’s contract was legal, and the court noted that in
general, a section 526a action may not be used to challenge
discretionary actions. (Id. at p. 1027.) The court held that the
plaintiff’s section 526a action was inappropriate, because the
specifics of the legal contract were properly within the defendant
agency’s control: “This is a decision which lies within the sound
discretion of the agency, pursuant to statutory authority. We
may not disturb it.” (Ibid.)




                                19
      DMV argues, “Here, like the challenged governmental
conduct in Lyons and Lucas, the DMV hearing officer’s dual role
as judge and proponent of DMV’s evidence complies with statute
and case law.”3 But this case is unlike Lyons and Lucas, in that
the plaintiffs in those cases did not challenge the legality or
constitutionality of the laws that governed the governmental
actions at issue. Here, DMV’s argument that it complied with
the relevant Vehicle Code sections does nothing to address
CDLA’s allegation that those Vehicle Code sections are
unconstitutional, either facially or as applied.4
      CDLA’s standing is therefore not undermined by the DMV’s
assertion that its actions are “legal.” The trial court’s conclusion
that CDLA lacked standing because the APS hearing system
complied with the laws that CDLA challenges was erroneous.


      3  The trial court cited Coshow, supra, 132 Cal.App.4th 687,
in holding that plaintiff did not have standing under section
526a. In fact, the court in Coshow did not consider standing:
“[B]ecause we address the merits of Coshow’s constitutional
challenge, we need not decide the issue of standing.” (Id. at p.
703, fn. 4.)
       4 Although the trial court interpreted CDLA’s allegations as

an as-applied challenge only, CDLA has made clear that it is
asserting both facial and as-applied challenges. Moreover, the
trial court’s distinction between a facial and as-applied
challenges does not appear to be supported by case law relevant
to section 526a taxpayer standing, although that distinction may
be relevant in other contexts. (See, e.g., People v. Navarro (2013)
212 Cal.App.4th 1336, 1350 n. 12 [“a party who fails to
demonstrate that the statute is unconstitutional as applied to the
party or to persuade the court of the merits of a facial challenge,
‘has no “standing” to allege that, as applied to others, the statute
might be unconstitutional.’”].)



                                20
      2.    Other potential plaintiffs
      DMV also argues that CDLA did not have standing under
section 526a because DMV’s actions “would not otherwise go
unchallenged in the absence of taxpayer actions.” DMV asserts
that “the Legislature has crafted mechanisms for drivers to
challenge the results of DMV’s APS hearings,” such as seeking
judicial review of DMV actions, and “[b]ecause there are ready
avenues other than a taxpayer suit to challenge the statutory
scheme at issue here, [CDLA does] not have standing.”
      This reasoning was rejected decades ago by the Supreme
Court. “[T]he existence of individuals directly affected by the
challenged governmental action . . . has not been held to preclude
a taxpayers’ suit. Numerous decisions have affirmed a taxpayer’s
standing to sue despite the existence of potential plaintiffs who
might also have had standing to challenge the subject actions or
statutes.” (Van Atta v. Scott (1980) 27 Cal.3d 424, 447-448.)
Moreover, the Court in Blair v. Pitchess, supra, held that limiting
standing under section 526a by requiring only actions involving
parties with individual interests would undermine the purpose of
section 526a: “[T]he primary purpose of section 526a was to give
a large body of citizens standing to challenge governmental
actions. If we were to hold that such suits did not present a true
case or controversy unless the plaintiff and the defendant each
had a special, personal interest in the outcome, we would
drastically curtail their usefulness as a check on illegal
government activity.” (Blair v. Pitchess, supra, 5 Cal.3d at p.
269.)
      DMV relies on Animal Legal Defense Fund v. California
Exposition and State Fairs (2015) 239 Cal.App.4th 1286 (ALDF),
in which the plaintiffs attempted to bring a section 526a action,




                                21
alleging that the defendant state agency violated animal cruelty
laws by transporting pregnant pigs to state fairs and confining
them in fairground displays. (Id. at pp. 1291-1292.) In a
demurrer, the defendants challenged whether the plaintiffs could
assert a claim under section 526a; the demurrer was sustained.
The Court of Appeal affirmed. It noted that a previous case held
there was no private right of action under the animal cruelty
statutes the plaintiffs asserted the defendants violated: “[T]he
[Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th
136] court concluded that recognition of a private right of action
under [Penal Code] section 597t would be inconsistent with the
Legislature’s entrustment of enforcement of anticruelty laws to
local authorities and humane societies.” (Id. at p. 1297.) The
court noted that California had a detailed legislative scheme
regarding animal cruelty and enforcement of animal cruelty laws,
and concluded, “Given this detailed legislative scheme, we believe
the Legislature intended the enforcement mechanisms it
established—and the entities in whom it entrusted such
enforcement—to be the exclusive mechanisms for, and entities
charged with, such enforcement. Put otherwise, the more general
remedy of a taxpayer action was not intended to be used in their
stead.” (Id. at p. 1301.)
       ALDF is not applicable here. The “statutory scheme” by
which individuals’ procedural due process rights are protected
consists of the United States and California Constitutions, and
the related statutes and case law interpreting and applying those
provisions. Procedural due process rights do not have a specific
statutory scheme and enforcement provisions similar to
California’s animal cruelty laws. CDLA has asserted those rights




                               22
here, and an action under section 526a is an appropriate means
to do so.
       3.   Common law standing
       CDLA also contends that it has taxpayer standing under
the common law. “[C]ommon law authority for taxpayer suits
[states] that a ‘taxpayer in his representative capacity can sue a
municipality only in cases involving fraud, collusion, ultra vires,
or a failure on the part of the governmental body to perform a duty
specifically enjoined.’” (Los Altos Property Owners Assn. v.
Hutcheon (1977) 69 Cal.App.3d 22, 26.) “[A] governmental
agency that acts outside of the scope of its statutory authority
acts ultra vires and the act is void.” (Lamere v. Superior Court
(2005) 131 Cal.App.4th 1059, 1066 fn. 4.)
       CDLA asserts that if “the DMV hearing structure is
unlawful, its operation is ultra vires, giving rise to common law
taxpayer standing.” DMV counters that it “complied with
applicable law” and therefore its actions were not ultra vires. As
we discussed above, a determination of standing—a threshold
issue—does not rely on a determination of the ultimate issues to
be determined in the case. Because CDLA has challenged the
APS system as unconstitutional and therefore ultra vires, CDLA
has common law taxpayer standing to assert these claims.
       Because CDLA had standing under section 526a and
common law taxpayer standing, the trial court’s holding that
CDLA lacked standing was erroneous.
B.     Cross motions for summary judgment
       CDLA asserts that if we find it had standing, we should
proceed to decide the merits of the motions for summary
judgment, grant CDLA’s motion, and deny DMV’s motion. DMV
asserts that the scope of appellate review should be limited to




                                23
standing, and if we find that CDLA has standing, we should
remand the case to the trial court for further proceedings.
       “A litigant’s standing to sue is a threshold issue to be
resolved before the matter can be reached on its merits.”
(Apartment Ass’n of Los Angeles County, Inc. v. City of Los
Angeles (2006) 136 Cal.App.4th 119, 128.) Here, the trial court
decided only the threshold issue of standing. This appeal reaches
us following cross-motions for summary judgment, in which the
parties submitted evidence in support of their respective motions
(including evidence of the combined advocate/factfinder roles of
DMV hearing officers and evidence of substantial ex parte
communications affecting the outcome of APS hearings).
However, the trial court did not reach the merits of CDLA’s
claims.
       In addition, the trial court did not reach evidentiary issues
that typically guide the scope of appellate review. “Under the
summary judgment statute, we examine the evidence submitted
in connection with the summary judgment motion, with the
exception of evidence to which objections have been appropriately
sustained.” (Paslay v. State Farm General Insurance Company
(2016) 248 Cal.App.4th 639, 644.) Here, DMV filed objections to
CDLA’s evidence with its opposition and reply. It appears that
the trial court did not rule on these objections.
       Without the benefit of decisions from the trial court
regarding the merits of the motions or the parties’ objections, we
decline to consider the parties’ motions for summary judgment on
appeal in the first instance.5 We express no opinion on the issues
that remain for determination.

      5 CDLA requested that we judicially notice the legislative
history for Vehicle Code section 14112, subdivision (b), in relation



                                24
                          DISPOSITION
       The judgment is reversed. On remand, the trial court shall
vacate the orders granting DMV’s motion for summary judgment
and denying CDLA’s motion for summary judgment. CDLA is
entitled to costs on appeal.
                CERTIFIED FOR PUBLICATION



                           COLLINS, J.

We concur:


EPSTEIN, P. J.


MANELLA, J.




to the substantive arguments in its motion for summary
judgment. Because we are not considering the merits of CDLA’s
motion, the documents are not relevant to the issues herein. We
therefore deny CDLA’s request.



                               25
