Harris Transportation Co. v. Air Resources Board

Opinion

Plaintiffs appeal from a superior court judgment denying their petition for writ of mandate challenging enforcement of the Heavy-Duty Vehicle Inspection Program (Cal. Code Regs., tit. 13, §§ 2180-2187, hereafter HD VIP) adopted by defendant California Air Resources Board (Board). HD VIP establishes procedures and criteria for intermittent roadside measurement of smoke emissions from heavy-duty diesel motor vehicles. Plaintiffs’ writ petition invoked Code of Civil Procedure section 1094.5 to overturn specific enforcement actions pursuant to HD VIP and Code of Civil Procedure section 1085 to prohibit future enforcement of HD VIP. The superior court concluded plaintiffs failed in the administrative proceedings to preserve their challenge to the individual enforcement actions. As to the effort to prohibit future enforcement, the court concluded that an action to enforce a citation affords recipients of future citations for violating HD VIP a plain, speedy and adequate remedy (Code Civ. Proc., § 1086) by which to vindicate the concerns raised here by plaintiffs.

On appeal plaintiffs contend, as they did in the superior court, that the HD VIP test procedure is unlawful because it is not generally accepted in the

Plaintiffs are owners of vehicles subject to HDVIP who were issued citations and timely requested administrative hearings. In the administrative proceedings, plaintiffs contested the scientific validity of the snap-idle test procedures adopted by the Board. The Board rejected the challenge and upheld the citations.

Plaintiffs petitioned the superior court for relief under Code of Civil Procedure sections 1094.5 and 1085. (Further statutory references to sections of an undesignated code are to the Code of Civil Procedure.) Plaintiffs’ writ petition alleged HDVIP is unlawful as it utilizes an inaccurate test and the hearing procedures are unconstitutional in that they preclude challenge to the test results. In oral argument before the superior court, plaintiffs raised the additional claim that the tests were not properly performed. Plaintiffs sought relief under section 1094.5 ordering the Board to set aside its decisions on the individual citations and under section 1085 ordering the Board to cease enforcing HDVIP.

The superior court dismissed the petition as to certain of the plaintiffs for failure to file their writ petition within 60 days of the administrative decision. (Cal. Code Regs., tit. 17, § 60075.47.) As to the remaining plaintiffs, the court denied relief, concluding plaintiffs may not challenge the regulations in a proceeding contesting a citation, and any issue regarding performance of the tests was waived for failure to raise it in the administrative proceeding. Regarding the request prospectively to enjoin enforcement of HDVIP, the court concluded plaintiffs have an adequate remedy in the ordinary course of law. (§ 1086.)

We first consider plaintiffs’ appeal from the rejection of their section 1094.5 challenge to the individual citations.

Section 1094.5 provides for review of a final administrative decision to determine “whether [the Board] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the

Review of an administrative regulation is governed by well-recognized standards. “Where a statute empowers an administrative agency to adopt regulations, such regulations ‘must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose.’ ” (Woods v. Superior Court, supra, 28 Cal.3d at p. 679.) “[I]n considering whether the regulation is ‘reasonably necessary’ under the foregoing standards, the court will defer to the agency’s expertise and will not ‘superimpose its own policy judgment upon the agency in the absence of an arbitrary and capricious decision.’ (Pitts v. Perluss (1962) 58 Cal.2d 824 , 832 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ].)” (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392 , 411 [ 128 Cal.Rptr. 183 , 546 P.2d 687 ].)

In the administrative proceeding, plaintiffs argued there is no evidence the snap-idle test adopted by the Board accurately measures smoke emissions. The Board rejected plaintiffs’ challenge, explaining plaintiffs’ evidentiary showing did “no more than indicate the existence of some controversy or disagreement about the procedure to be used to test heavy-duty diesel vehicles. This falls far short of proving that the State Board’s adoption of the test procedure . . . was arbitrary, capricious or without a rational basis.”

Plaintiffs’ writ petition alleges the Board “abused its discretion in adopting the Title 13 test procedure regulations by arbitrarily, capriciously, and in derogation of [plaintiffs’] rights to substantive due process of law: [¶] (a) adopting an unlawful conclusive presumption of guilt; [¶] (b) adopting a test procedure lacking scientific basis; [*]□ (c) adopting vague test equipment specifications for equipment permissible for use in the snap-idle test procedure; and [U (d) adopting vague and ambiguous regulations.”

The trial court rejected plaintiffs’ claim of failure to correlate the test equipment because, as plaintiffs conceded, it had not been raised in the administrative proceeding. In a proceeding in administrative mandamus, the plaintiff is limited to the issues raised at the administrative level. (Woods v. Superior Court, supra, 28 Cal.3d at pp. 680-681.) “The general principle that courts should not be burdened with matters which can be adequately resolved in administrative fori |>zc], frequently expressed in the rule requiring exhaustion of administrative remedies . . . , is founded at least in part on the wisdom of the efficient use of governmental resources. . . . Such use serves the twin goals of avoiding delay and unnecessary expense in vindication of legal rights. Permitting administrators an opportunity to construe challenged regulations in a manner to avoid their invalidation is preferable to requiring a court challenge. Moreover, in those cases in which the validity of such a regulation must be judicially resolved, the task of a reviewing court is simplified by a narrowing and clarification of the issues in an administrative hearing.” (28 Cal.3d at pp. 680-681, citations omitted.)

Plaintiffs waived any argument that the tests were not properly conducted by failing to raise the issue in the administrative proceeding and thereby deprived the Board of the opportunity to establish compliance with the regulations. Having failed to preserve any other challenge to the individual administrative determinations, plaintiffs are not entitled to relief under section 1094.5.

Ill

The same general challenges to HD VIP are repeated by plaintiffs in connection with their claim for relief under section 1085. In addition, plaintiffs allege the trial court denied them the right to a trial and presentation of evidence to establish their claims.

Section 1085 provides for issuance of a writ of mandate to “any inferior tribunal, corporation, board, or person, to compel the performance of an act

In their writ petition, plaintiffs alleged the snap-idle test lacks scientific acceptance and the hearing procedures deny due process by establishing a conclusive presumption from the test results. However, as with their cognate section 1094.5 claims, plaintiffs abandoned these challenges at oral argument in the superior court. After the court explained plaintiffs had waived any challenge in the section 1094.5 proceeding based on failure to correlate the test equipment, plaintiffs argued the challenge was not waived to the extent it addressed future enforcement proceedings. The court indicated future violators would have an adequate remedy in the ordinary course of law (§ 1086) by challenging the test procedure in enforcement proceedings, and therefore writ relief is unnecessary. Plaintiffs responded that this remedy would not be adequate “[b]ecause the regulation was properly adopted.” According to plaintiffs, the regulations had been properly adopted, but not properly administered. Thus, plaintiffs waived all claims to validity of the regulations, both facially and as applied.

A plaintiff is entitled to writ relief as a matter of law if there has been compliance with the requirements for such relief, including lack of a plain, speedy, and adequate remedy at law. (Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199 , 203-204 [ 37 Cal.Rptr. 425 , 390 P.2d 193 ].) Where an adequate remedy at law exists, the matter of writ relief is within the discretion of the court.

Had plaintiffs not conceded the regulations embracing the snap-idle test were properly adopted, the issue before us would be whether such adoption was arbitrary and capricious or otherwise lacking in support. Plaintiffs would have been entitled to a trial and the presentation of evidence on this issue. However, that is not the issue plaintiffs have chosen to litigate. Instead of challenging the regulations themselves, plaintiffs contend the regulations are not being properly administered.

In any future proceedings to enforce HD VIP, the cited party may challenge a citation on the basis of lack of correlation of the test equipment. In the event the Board rejects the challenge, the rejection may be reviewed in a