Brewer v. Department of Motor Vehicles

• Decision Date: 23 May 1979
• Citation: 93 Cal.App.3d 358,155 Cal.Rptr. 643
• Parties: Robert W. BREWER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. Civ. 44206.
• Court: California Court of Appeals Court of Appeals

Page 643

155 Cal.Rptr. 643

93 Cal.App.3d 358

Robert W. BREWER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants.

Civ. 44206.

Court of Appeal, First District, Division 3, California.

May 23, 1979.

Hearing Denied Aug. 1, 1979.

Evelle J. Younger, Atty. Gen., Robert E. Murphy, Deputy Atty. Gen., San Francisco, for defendants and appellants.

Richard Wesley Johnson, Walnut Creek, for plaintiff and respondent.

WHITE, Presiding Justice.

This is an appeal from a judgment of the Superior Court of Contra Costa County entered pursuant to Code of Civil Procedure section 1094.5, ordering the issuance of a writ of mandamus directing the Department of Motor Vehicles to set aside its decision revoking the license of Robert Brewer.

On March 3, 1976, appellant Department of Motor Vehicles (hereinafter referred to as the Department or appellant), filed an accusation against respondent, a licensed vehicle salesman, alleging that respondent was not of good moral character as provided in Vehicle Code section 11806, subdivision (5) in that respondent had been convicted of a crime involving moral turpitude, which was cause to suspend or revoke his license.

A hearing was held before the administrative law judge on December 14, 1976. The judge prepared a proposed decision which determined that on November 20, 1975, respondent was convicted of violation of Penal Code section 647a (annoying or molesting a child), a crime of moral turpitude, but that it was not established by the evidence that the incident which resulted in his conviction was in any way connected with any activity related to the exercise of his license privileges. Further, the judge found the evidence did not establish that the Department had statutory authority to suspend or revoke respondent's license. The Department adopted the proposed decision but modified it by providing that respondent's conviction was cause for revocation of his license pursuant to the provisions of Vehicle Code sections 11804, 11806 and/or 11808. Respondent was, however, granted a probationary license.

On September 13, 1977, respondent filed a petition for writ of mandate in the Contra Costa County Superior Court. At the hearing the parties argued the issues of the Department's statutory authority and the requirement of a nexus between respondent's conviction and his occupation. Appellant contended that, at the administrative hearing, the Department had been prevented from inquiring into the nature of the crime for which respondent had been convicted by respondent's objections which were sustained by the administrative law judge. Accordingly, appellant argued below, the lack of evidence connecting the crime and the occupation was the fault of respondent and therefore not a basis for appeal. Nonetheless, on December 27, 1977, the superior court judge granted the petition for writ of mandate and ordered the Department to vacate its order revoking respondent's license to sell vehicles. The judgment was bottomed on the determination that respondent's conviction was of insufficient connection to the business of selling automobiles to warrant suspension or revocation of a license.

On appeal here, appellant argues that respondent did not bear his burden of proof in the trial court, and that he should not have been allowed to raise as an issue there the absence of evidence which was excluded because of his improper objections. Further, appellant argues that the Department had the statutory authority to revoke respondent's license and that it is not necessary to establish a nexus between respondent's criminal conduct and his activities as a salesman.

For reasons we herein explain, we conclude that the trial court's decision is correct.

At this juncture, it may prove helpful to observe that the trial court was presented with a case in which it was authorized by law to exercise its independent judgment of the evidence. (See Code Civ.Proc., § 1094.5, subds. (b) and (c).) This is the rule because the suspension or revocation of an existing license, as herein, affects a "vested" right. (See Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 915, 80 Cal.Rptr. 89, 458 P.2d 33.) When the right affected is "vested," the administrative decision is reviewed by means of a limited trial de novo in which the trial court not only examines the record for errors of law but also exercises its independent judgment upon the Weight of the evidence produced before the administrative agency, together with any further evidence properly admitted by the court. (Merrill, supra, at p. 914, 80 Cal.Rptr. 89, 458 P.2d 33.) An abuse of discretion is established if the trial court in the exercise of its independent judgment determines that the findings of the administrative agency are not supported by the weight of the evidence. On an appeal taken from a judgment of the trial court in a mandamus proceeding in a case wherein the trial court is authorized to conduct a limited trial de novo, our appellate province is analogous to that in an ordinary civil appeal: We will recognize and correct errors of law, if any, but a factual finding will be overturned only if the evidence received by the trial court, including the record of the administrative proceeding, is insufficient as a matter of law to sustain the finding. If there is substantial evidence to support the trial court's findings, evidence to the contrary notwithstanding, the findings will not be disturbed on appeal. (See generally 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, §§ 216-217, pp. 3972-3974.)

Respondent was disciplined under the 1975 version of Vehicle Code section 11806. That section provided in relevant part: "The department may refuse to issue a vehicle salesman's license when it determines that: . . . (P) (5) The applicant, . . . is not of good moral character. The conviction of a crime, including a conviction after a plea of nolo contendere, involving moral turpitude shall be prima facie evidence that the applicant is not of good moral character." (Stats.1975, ch. 505, § 1, pp. 1030, 1031.) Because the statute made no reference to suspension or revocation of licenses, respondent argued in the trial court that appellant had no statutory authority to revoke his license. People v. Medina (1971) 15 Cal.App.3d 845, 93 Cal.Rptr. 560, indicates the contrary.

In Medina, the court considered a version of Penal Code section 647 in which the Legislature had failed to reenact the introductory declaration which declared that the described conduct was a misdemeanor. The court found that the omission had been inadvertent, pointing to the previous version of the section and the later amended version which restored the introductory declaration by emergency legislation. Having found the clear intent of the Legislature indicated the omission was inadvertent, the court went on to find that under these circumstances, ". . . words inadvertently omitted from a statute may be supplied in the process of construction in order to effectuate the legislative intent." (15 Cal.App.3d at p. 848, 93 Cal.Rptr. at p. 562.)

The intent of the Legislature would appear to be equally clear in the instant case. Before the 1975 version of section 11806, the Department's power to discipline was contained in section 11802 which provided that the Department could " refuse to issue or may suspend or revoke a license, when satisfied that: . . . (P) 2. The applicant or licensee, . . . is not of good moral character. (P) The conviction of a crime, including a conviction after a plea of nolo contendere, involving moral turpitude shall be prima facie evidence that the applicant or licensee is not of good moral character." (Stats.1969, ch. 240, § 4, p. 588.) In 1976, the Legislature restored the reference to revocation and suspension of the vehicle salesman's license to the 1975 version of section 11806. (Stats.1976, ch. 934, § 4, p. 2139.) With the exception of the fact that the omitted portion was not restored by emergency legislation, the situation in Medina exactly parallels the instant case.

The legislative counsel's digest of the 1975 version supports the inference that the omission was inadvertent. The description of the bill states: "The bill would . . . revise the grounds permitting refusal to issue a license or to suspend or revoke a license." (Stats.1975, ch. 505, No. 6 West's Cal.Legis.Service, p. 1205.) This indicates that the purpose of the bill was not to exclude from its provisions disciplinary procedures relating to suspension and revocation of licenses. In fact, section 11806, subdivision (1) of the 1975 version contains the language, "The applicant or licensee." Clearly, the intent of the Legislature was to grant the Department authority to revoke or suspend licenses as well as to refuse to grant them under the conditions listed. The Department therefore had statutory authority to revoke respondent's license.

The parties evidently elected to ignore the trial de novo aspect of the scope of review, and the only "evidence" presented to the trial court consisted of the Department's accusation of respondent, the administrative law judge's proposed decision and the Department's decision. It appears that the reporter's transcript of the administrative proceedings was not in evidence. Consequently, the trial court's task was to consider and decide a question of law. The facts are not in dispute. Respondent possessed a license to sell vehicles; he was convicted by his guilty plea of a crime involving moral turpitude. By statute, the conviction is Some evidence that respondent is not of good moral character. However, there is no evidence in the record reasonably demonstrating that the evidence of respondent's immoral character relates to his fitness to engage in the vocation of selling automobiles.

The Department relies upon Wilson v. State Personnel Bd. (1974) 39 Cal.App.3d 218, 114 Cal.Rptr. 134, in support of...