Richardson v. Dep't of Motor Vehicles

Alan Richardson appeals from an order granting a motion for summary judgment in favor of defendant, Department of Motor Vehicles

LEGAL PRINCIPLES AND STANDARD OF REVIEW

The governing legal principles are well established. To obtain summary judgment, the moving party (here, the DMV)

unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (§ 815.6.) As the California Supreme Court explains: "Under Government Code section 815.6, as we have construed it, 'a public entity is liable for an injury proximately caused by its failure to discharge a mandatory duty designed to protect against the risk of a particular kind of injury ....' [Citations.] Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts." ( Creason , supra , at p. 631, 76 Cal.Rptr.2d 489 , 957 P.2d 1323 .)

Richardson's first argument is one of statutory interpretation. In Richardson's view, the DMV's action that proximately caused his injury was not covered by section 818.4, which immunizes only "the issuance, denial, suspension or revocation of, or ... the failure or refusal to issue, deny, suspend or revoke" a license. ( § 818.4.) Rather, he argues, the injury-causing action was "the DMV's decision to 'lift the suspension' of Ms. Dembowsky's

relevant part: "[T]he department may require the re-examination of the licensee, and shall give 10 days' written notice of the time and place thereof. If the licensee refuses or fails to submit to the re-examination, the department may peremptorily suspend the driving privilege of the person until such time as the licensee shall have submitted to re-examination. The suspension shall be effective upon notice." Here, the record reflects that, in April 2011, the DMV mailed notice to Dembowsky that she was under order to perform a regular reexamination due to her March 8th accident. Accordingly, on May 2, 2011, Dembowsky appeared before a DMV hearing officer for an in-person interview and examination. Afterward, the hearing officer ordered her to perform a written law test and an in-person driving test, and have both a vision and a medical examination in order to complete her reexamination. On the same date (May 2, 2011), Dembowsky took and passed the written law test.

As Richardson notes, Dembowsky subsequently failed to appear on the scheduled date for the in-person driving test. As a consequence of Dembowsky's noncompliance with the scheduled test, the DMV issued a Driver Safety Report imposing a suspension of her license effective May 18, 2011. This DMV report reiterated the instruction that Dembowsky would need to submit to a complete agency reexamination in order to regain her driving privilege. Dembowsky complied. In particular, on May 16, 2011, Dembowsky provided the DMV with updated medical evaluations from both her physician and her ophthalmologist indicating she was physically and mentally capable of safe driving during daytime hours. She also took the DMV's vision exam and scored 20/40 in both eyes tested together without corrective lenses, thereby meeting and surpassing the statutory minimum standard. (See Veh. Code, § 12805, subd. (a)(2) [requiring licensees to have at least 20/200 vision in one eye].) And lastly, on September 13, 2012, after being issued a special instruction permit allowing her to drive during the day if accompanied by a driving instructor, and after participating in lessons with a private driving school, Dembowsky received a satisfactory score on the DMV's in-person driving test. Notably, in giving Dembowsky a satisfactory score on her driving

opposite-that Dembowsky was, based upon all the evidence in the file, capable of safe vehicle operation. And

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are not in dispute. Appellant Alan Richardson (hereinafter, Richardson) was seriously injured when Dembowsky unlawfully turned left in her vehicle into oncoming traffic and collided with Richardson's motorcycle. Richardson had the right of way. The accident severed Richardson's left leg, broke his right leg and pelvis, damaged his spine, and left him paralyzed from the waist down.

Dembowsky was issued a driver's license on June 25, 2009, with an expiration date of July 3, 2014. On March 4, 2011, following an accident where Dembowsky hit a parked car several times, an officer with the Santa Rosa Police Department requested that the DMV perform a regular reexamination of Dembowsky. Accordingly, on April 13, 2011, the DMV mailed Dembowsky a Notice of Re-Examination Appointment scheduled for May 2, 2011.

On May 2, 2011, Dembowsky thus appeared before a hearing officer for an examination of "her driving patterns, her health conditions, and vision." Following this exam, the hearing officer requested that Dembowsky take both a written and an in-person driving test and submit to medical and vision evaluations. Dembowsky passed the written test on the same day of the hearing.

Her subsequent vision examination by ophthalmologist Patrick J. Caskey, M.D., revealed that, aside from macular degeneration that affected her nighttime driving, Dembowsky had no apparent condition that would affect her ability to drive safely. Similarly, her physical examination by Larry Marianella, M.D., revealed no medical condition that would interfere with her ability to safely operate a vehicle.

On May 15, 2012, Dembowsky submitted updated medical and vision evaluations by her personal physicians, which again revealed no condition that would affect her ability to drive safely during the day time.

On June 6, 2012, Dembowsky appeared again for a hearing, after which the hearing officer referred her for another behind-the-wheel driving test. On June 18, 2012, the DMV issued a special instruction permit, allowing Dembowsky to drive during the day if accompanied by a driving instructor.

As referred through the latest hearing, Dembowsky took her behind-the-wheel driving test on July 5, 2012. The examiner gave Dembowsky an unsatisfactory score due to her commission of seven critical errors. However,

must show based on undisputed material facts that either the action has no merit or there is a complete defense to the action. ( Code Civ. Proc., § 437c, subds. (a)(1), (b)(1), (o)(2).) On the other hand, the opposing party, in order to defeat the motion, must demonstrate "the existence of a triable issue of material fact." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 850, 107 Cal.Rptr.2d 841 , 24 P.3d 493 .)

In reviewing a summary judgment, the appellate court reviews the lower court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. ( Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201 , 206, 74 Cal.Rptr.3d 570 , 180 P.3d 321 .)

DISCUSSION

Richardson challenges the trial court's grant of summary judgment in favor of the DMV on two grounds. First, Richardson contends the trial court erred in finding the DMV immune from liability under section 818.4, because the statute, by its language, immunizes only particular licensing actions, none of which were taken here. Second, in the alternative, Richard contends that, even assuming the DMV is entitled to the immunity afforded by section 818.4 when, in ordinary circumstances, it lifts the suspension on a driver's license, the DMV's conduct in this case falls under an exception to the statute-namely, the authority of section 815.6, pursuant to which a public entity remains liable for an injury proximately caused by its failure to discharge a mandatory duty. We address these contentions as appropriate below after setting forth the relevant legal scheme.

"The California Tort Claims Act [now the Government Claims Act] provides that a public entity is not liable for injury arising from an act or omission except as provided by statute." ( Creason v. Department of Health Services (1998) 18 Cal.4th 623 , 630, 76 Cal.Rptr.2d 489 , 957 P.2d 1323 ( Creason ), citing § 815, subd. (a).) Relevant here, section 818.4 confers immunity upon a public entity "for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke" a license. ( § 818.4.) Section 815.6, in turn, carves out an exception to this grant of immunity: specifically, where "a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty

license," and as such falls outside the statutory grant of immunity.

We disagree. Section 818.4, in full, provides as follows: "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." In this case, the DMV's action of "lift[ing] the suspension" of Dembowsky's license falls squarely within the scope of this statutory language when it is given its plain and ordinary meaning. Specifically, reasonably interpreted on this basis, we conclude that lifting the suspension of Dembowsky's license is a "similar authorization" to issuing or failing or refusing to suspend a license by a DMV employee who is "authorized by enactment to determine whether or not [her license] should be issued, denied, suspended or revoked." To read section 818.4 otherwise, we conclude, would require distorting the ordinary meaning of the chosen words in such a way as to endanger the very thing we are charged to protect-the Legislature's intent. ( Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 , 733, 3 Cal.Rptr.3d 636 , 74 P.3d 737 ["Our primary task in construing a statute is to determine the Legislature's intent. [Citation.] Where possible, 'we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law' "].) Accordingly, we decline Richardson's invitation to effectively read out of section 818.4 the precise act taken by the DMV in this case with respect to Dembowsky's license-namely, its act of determining "whether or not [her license] should be ... suspended," and thereafter authorizing the termination of the previously imposed suspension of it.

" 'Government officials are liable for the negligent performance of their ministerial duties [citation omitted] but are not liable for their discretionary acts within the scope of their authority [citations omitted], even if it is alleged that they acted maliciously [citations omitted].' " ( Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577 , 583, 124 Cal.Rptr. 305 ; accord, Morris v. County of Marin (1977) 18 Cal.3d 901 , 913, 136 Cal.Rptr. 251 , 559 P.2d 606 [immunity under section 818.4 applies where the public entity "was under a statutory obligation to make such a discretionary decision" and "[i]n the absence of such discretion, ... no immunity is afforded"]; see § 820.2 [statutory immunity for discretionary acts and omissions].)

Relevant to the DMV's discharge of duties as to Dembowsky, the record is undisputed the agency proceeded under Vehicle Code section 13801 at the request of a police officer who observed Dembowsky hit a parked car several times in a lot on March 8, 2011. Vehicle Code section 13801 provides in

test, the DMV examiner reported, among other things, that she "maintained proper speed and lane position at all times reacting properly to all vehicular and pedestrian traffic. She [also] scanned often and effectively."

Accordingly, on September 14, 2012, based upon her successful performance on this series of tests and evaluations, the DMV issued an Order of Set Aside or Reinstatement pursuant to Vehicle Code section 13801, stating: "After a review of the information on file, including any evidence which you may have presented, the action [of suspension] effective 5/18/2011 , pursuant

while Richardson repeatedly refers to facts in the record regarding Dembowsky's incidents of unsafe driving (including a driving test on July 5, 2012, in which she committed seven critical errors documented by the instructor), these facts do not require us to reach a different conclusion. As explained above, the DMV was authorized by the Vehicle Code to exercise its discretion to decide whether Dembowsky was entitled to the driving privilege. ( Veh. Code, § 13801 ; see Veh. Code, § 12814, subd. (a) [a driver's age "may not constitute evidence of a condition requiring an examination of the driving ability"].) Richardson directs us to no facts in this record, nor do we know of any, that would authorize this court to override the DMV's valid exercise of discretion on this matter. (See Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640 , 646-647, 69 Cal.Rptr.2d 296 [rejecting appellant's argument that the DMV was not entitled to section 818.4 immunity because evidence of the licensee's medical disabilities established "that DMV had determined [licensee] was 'unable to safely' drive" where there "was no disputed material fact DMV had determined [he] was able to safely drive and, in its discretion, issued him a license"]; People v. Superior Court ( Wilson ), supra , 18 Cal.App.4th at pp. 37-38, 22 Cal.Rptr.2d 110 [concluding there was no triable issue of fact in the summary judgment record tending to show the state had made a finding or determination that licensee was "unable to safely operate a motor vehicle"]; cf. Trewin v. State of California (1984) 150 Cal.App.3d 975 , 980-981, 198 Cal.Rptr. 263 [holding that it was error to enter judgment on the pleadings in favor of the state because the complaint by inference stated a cause of action for violation of a mandatory duty].) And the law under such circumstances is clear. We must presume, in the absence of contrary evidence, that a public agency follows its official duties as prescribed by the applicable statutory law (here, the Vehicle Code). ( Papelian v. State of California , supra , 65 Cal.App.3d at p. 963, 135 Cal.Rptr. 665 ["It is to be presumed that the defendant department followed its official duties as required by the Vehicle Code for issuing the driver's license"].)

Thus, having applied the governing law to the by-all-means unfortunate circumstances of this case, we must affirm the judgment. The undisputed evidence proves the DMV validly exercised its discretion to lift the suspension on Dembowsky's license after determining that she had passed the requisite written law test, in-person driving test, and vision and medical examinations. Accordingly, the trial court correctly ruled the DMV was immune from liability pursuant to section 818.4 and entered judgment in its favor.