Austin v. Valverde

• Decision Date: 30 November 2012
• Citation: 149 Cal.Rptr.3d 755,211 Cal.App.4th 546
• Court: California Court of Appeals
• Parties: Ronald M. AUSTIN, Plaintiff and Appellant, v. George VALVERDE, as Director, etc., et al., Defendants and Respondents.

211 Cal.App.4th 546

149 Cal.Rptr.3d 755

2012 Daily Journal D.A.R. 16,062

Ronald M. AUSTIN, Plaintiff and Appellant,

v.George VALVERDE, as Director, etc., et al., Defendants and Respondents.

Court of Appeal, Second District, Division 8, California.

B237968

Filed November 30, 2012

APPEAL from a judgment of the Superior Court of Los Angeles County.Ann I. Jones, Judge.Remanded with direction.(Los Angeles County Super. Ct.No. SS019974)

Ronald M. Austin, in pro. per.; and Brent J. Borchert for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Kenneth C. Jones and Nancy G. James, Deputy Attorneys General, for Defendants and Respondents.

RUBIN, ACTING P. J.

RonaldM.Austin appeals from the court's dismissal of his petition for writ of mandate ordering the director of the Department of Motor Vehicles(DMV) to set aside DMV's suspension of his driver's license for refusing to submit to a chemical test of his blood alcohol concentration (BAC).We remand for further proceedings in the trial court to permit appellant to prosecute his petition with the assistance of a copy of the transcript from the DMV administrative hearing that led to suspension of his license.

FACTS AND PROCEEDINGS

On July 4, 2010, California Highway Patrolman T. Dalton arrested appellant for suspected drunk driving.Patrolman Dalton transported appellant to Ventura County Medical Center for a chemical test of appellant's BAC.Appellant alleges a dispute developed at the medical center between him and the patrolman about the types of chemical tests available to measure his BAC.Appellant expressed a preference for a urine test, but the patrolman informed him a urine test was not an “option.”Accordingly, appellant submitted to a blood test.The administrative record contains what appears to be a report from the Ventura County Sheriff's Department forensic laboratory stating appellant's BAC was 0.22 percent in a blood sample drawn less than one hour after his arrest.

Sevenweeks later on August 26, 2010, DMV convened an administrative hearing on whether to suspend appellant's license for refusing to submit to a chemical test of his BAC.At the hearing's conclusion, DMV suspended appellant's license for one year effective September 29, 2010, because appellant“refused to submit to or failed to complete a chemical test requested by a peace officer.”A month later (shortly before his suspension was to take effect), appellant filed a petition for writ of mandate seeking an order directing respondentGeorge Valverde in his capacity as DMV's director to set aside the suspension, or to show cause for refusing to do so.Appellant's petition alleged that when Patrolman Dalton directed appellant to submit to a chemical test or face suspension of his license, appellant agreed to what he understood was the patrolman's offer of a urine test.But, the petition further alleged, when Patrolman Dalton withdrew the offer of a urine test, appellant acquiesced without physical resistance to a blood test.Appellant filed with his petition an application for waiver of court fees and costs, which the court granted.

Appellant requested that DMV prepare the administrative record.¹Contending that he needed a copy of the administrative hearing transcript to prosecute his petition, appellant asked that DMV provide him a free copy of the transcript based on his in forma pauperis status.DMV refused.Accordingly, appellant filed with the trial court a motion to compel production of the transcript.DMV opposed the motion, arguing that the law required DMV only to prepare the record, not to give a free copy of it to appellant.At the hearing on appellant's motion, the court ordered DMV to lodge the record, including the administrative hearing transcript, with the court.The court denied, however, appellant's request that DMV provide a free copy of the transcript to him.The court ruled, “[DMV] has the obligation to prepare the transcript[, but a fee waiver] doesn't require [DMV] provide copies of the transcript directly to [appellant].”

DMV lodged the administrative record with the court, and the court thereafter set a briefing schedule and trial date for appellant's petition.In the interim, the court refused to let appellant copy the lodged record.Claiming that not having a hearing transcript hamstrung his ability to establish his petition's assertion that PatrolmanDalton's DMV hearing testimony proved that appellant did not refuse to take a chemical test, appellant did not file an opening brief in support of his petition.Instead, and in order to expedite his appeal, appellant filed a request for dismissal of his petition with prejudice one day before the scheduled bench trial of his petition.At the next day's hearing, the court accepted appellant's request to dismiss.The court stated, appellant“has not come to court, nor has he reviewed the file....I see no ground shown for his failure to pay for [a copy of] the administrative record, nor do I find he has any right to have that record scanned and otherwise made available to him.”The court took the hearing off calendar, and the clerk entered a dismissal with prejudice.This appeal followed.

STANDARD OF REVIEW

To the extent that resolution of this appeal depends on statutory interpretation applied to undisputed facts, we independently review the trial court's refusal to order DMV to provide appellant a free copy of the administrative hearing transcript.(Ghirardo v. Antonioli(1994)8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960.)

DMV alternatively asserts that the abuse-of-discretion standard of review applies to the court's order refusing to compel DMV's production of the transcript.Whether or not DMV is correct, its assertion does not advance DMV's cause.Here, the court did not exercise discretion because it concluded it had no authority to order DMV to provide a free transcript.Failure to exercise discretion is itself an abuse of discretion.(Richards, Watson & Gershon v. King(1995)39 Cal.App.4th 1176, 1180, 46 Cal.Rptr.2d 169;Dubois v. Corroon & Black Corp.(1993)12 Cal.App.4th 1689, 1696, 16 Cal.Rptr.2d 719;Gardner v. Superior Court(1986)182 Cal.App.3d 335, 227 Cal.Rptr. 78.)In short, the trial court either correctly held that it lacked authority to order DMV to provide a free copy of the transcript, in which case the court did not err regardless of the standard of review, or else the trial court mistook its authority, in which case it abused its discretion.

DISCUSSION

1.Appealability

Appellant dismissed his petition following the court's order denying his motion to compel DMV's production of a free copy of the administrative hearing transcript.In dismissing his petition with prejudice, appellant's stated purpose was to expedite his appeal.“[M]any courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal.”(Ashland Chemical Co. v. Provence(1982)129 Cal.App.3d 790, 793, 181 Cal.Rptr. 340;see alsoStewart v. Colonial Western Agency, Inc.(2001)87 Cal.App.4th 1006, 1012, 105 Cal.Rptr.2d 115[“appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling”];Casey v. Overhead Door Corp.(1999)74 Cal.App.4th 112, 116, fn. 2, 87 Cal.Rptr.2d 603, disapproved on another point byJimenez v. Superior Court(2002)29 Cal.4th 473, 481, fn. 1, 127 Cal.Rptr.2d 614, 58 P.3d 450[“a party may agree to dismiss an action after an adverse ruling by the trial court, if the dismissal is intended to expedite the appeal and is not truly a voluntary relinquishment of the action”].)

DMV asserts we lack appellate jurisdiction because appellant voluntarily dismissed his petition.In support, DMV cites language from Gutkin v. University of Southern California(2002)101 Cal.App.4th 967, 975, 125 Cal.Rptr.2d 115( Gutkin ) to argue we must dismiss the appeal: “It is well established that a voluntary dismissal ... is not appealable.”DMV misreads Gutkin because Gutkin distinguishes between a voluntary dismissal with prejudice and a voluntary dismissal without prejudice.The Gutkin court explained that because the plaintiff before it “dismissed his remaining claims in this casewithout prejudice, the voluntary dismissal could not have the legal effect of a final judgment, and could not serve to expedite an appeal.By voluntarily dismissing the action without prejudice[, the plaintiff] lost his ability to” take an appeal.( Ibid. )After stating the foregoing, Gutkin deemed inapposite the decisions cited in our preceding paragraph on which appellant relies— Ashland Chemical Company v. Provence, supra;Stewart v. Colonial Western Agency, supra;and, Casey v. Overhead Door Corp., supra —because they were dismissals with prejudice, and as such they supported appellate jurisdiction.( Ibid. )

DMV's other authorities are, like Gutkin, equally unavailing for DMV's proposition that appellate jurisdiction can never arise from a voluntary dismissal.DMV miscites County of Monterey v. Mahabir(1991)231 Cal.App.3d 1650, 282 Cal.Rptr. 924.There, appellate jurisdiction did not exist over a trial court's $500 sanctions order because the amount was less than the statutory minimum for appealability of $750.(Id. at p. 1652, 282 Cal.Rptr. 924.)And Delagrange v. Sacramento Sav. & Loan Assn.(1976)65 Cal.App.3d 828, 135 Cal.Rptr. 614, also cited by DMV, is not our situation.There, the trial court sustained a demurrer with leave to amend to two of the plaintiff's multiple causes of action, but the plaintiff declined to amend the complaint.Instead, the parties stipulated to dismissal of the two causes of action and proceeded with the plaintiff's remaining claims.On review, the appellate...