Gustafson v. Zolin

• Decision Date: 25 September 1997
• Docket Number: No. C023542,C023542
• Citation: 57 Cal.App.4th 1361,67 Cal.Rptr.2d 645
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 7685, 97 Daily Journal D.A.R. 12,321 Harry GUSTAFSON, Plaintiff and Respondent, v. Frank ZOLIN, as Director etc., Defendant and Appellant.

Page 645

67 Cal.Rptr.2d 645

57 Cal.App.4th 1361, 97 Cal. Daily Op. Serv. 7685,

97 Daily Journal D.A.R. 12,321

Harry GUSTAFSON, Plaintiff and Respondent, v. Frank ZOLIN, as Director etc., Defendant and Appellant.

No. C023542.

Court of Appeal, Third District, California.

Sept. 25, 1997.

Daniel E. Lungren, Attorney General, Martin H. Milas, Senior Assistant Attorney General, Marybelle D. Archibald, Supervising Deputy Attorney General, Andrew F. Loomis, Deputy Attorney General, for Defendant and Appellant.

Julie E. Mumma, Sacramento, for Plaintiff and Respondent.

DAVIS, Acting Presiding Justice.

The Department of Motor Vehicles (DMV) appeals from that portion of a writ of mandate directing it to pay $1,185 in attorney fees to petitioner (Gustafson) under Government Code section 800. The DMV suspended Gustafson's driver's license after determining that he had been arrested for driving with a blood alcohol level of .08 percent or more. (Veh.Code, § 13353.2, subd. (a)(1).) A driver safety officer from the DMV later concluded, in a letter to Gustafson's attorney, that the suspension could not be lifted upon Gustafson's submittal of a municipal court minute order showing a not guilty finding on the .08 percent charge. (See Veh.Code, § 13353.2, subd. (e).)

Government Code section 800 specifies that "[i]n any civil action to appeal or review the award, finding, or other determination of any administrative proceeding ... where it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect reasonable attorney's fees," not to exceed $7,500.

We reverse the award of attorney fees. We conclude that the driver safety officer's letter to Gustafson did not constitute a "determination of [an] administrative proceeding" for which attorney fees could be awarded under Government Code section 800.

BACKGROUND

If a driver is suspected of driving under the influence of alcohol, the driver may be criminally prosecuted and have his or her driver's license administratively suspended. (See Veh.Code, §§ 23152, 13353.2.)

Gustafson was criminally charged with violating Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol) and subdivision (b) (driving with a blood alcohol level of .08 percent or greater) after a police officer administered two breath tests, each of which revealed a blood alcohol level of .08 percent. The officer had also served Gustafson with an "Administrative Per Se Order of Suspension/Revocation Temporary Driver License Endorsement," notifying Gustafson that his driver's license would be administratively suspended or revoked in 30 days and that he had a right to a pre-suspension administrative hearing. This administrative action was taken pursuant to Vehicle Code section 13353.2. (All further references to undesignated statutory sections are to the Vehicle Code, except for Government Code section 800 which will be referred to as section 800.) ¹

In an administrative hearing held in August of 1995, the DMV upheld Gustafson's license suspension, finding (i) that the police officer had reasonable cause to believe Gustafson was violating section 23152, (ii) that Gustafson had been lawfully arrested, and (iii) that Gustafson had a blood alcohol level of at least .08 percent at the time of driving.

Pursuant to a plea bargain on the section 23152, subdivision (a) criminal charge, Gustafson pleaded guilty to non-alcohol-related reckless driving. The municipal court then conducted a court trial on the section 23152, subdivision (b) charge. In a minute order, the court confirmed the non-alcohol-related plea on the section 23152, subdivision (a) charge, and noted that it had found "defendant NG [not guilty] after Court Trial to Sec[.] 23152(b) VC [Vehicle Code]."

Gustafson's attorney submitted a certified copy of this minute order to the DMV, requesting that Gustafson's suspended driver's license be reinstated immediately under the acquittal provision of section 13353.2, subdivision (e).

Driver Safety Officer Kay Cox of the DMV responded to the letter from Gustafson's attorney. Cox stated: "[T]his is not a case in which the suspension ... can be set aside. p ... The court documentation submitted does not indicate any evidentiary court proceeding. There must be some adjudication that there is a determination of the facts to give [the DMV] the authority to set aside the [suspension]. If you have any additional documentation (i.e., transcript or other clarifying documentation) to support tha[t] an adjudication occurred in this case, please forward it immediately for us to review."

Gustafson did not submit any additional documentation to the DMV. Instead, he filed a petition for writ of mandate. The trial court granted the writ and awarded attorney fees of $1,185 to Gustafson under section 800. The court concluded that the DMV (through Cox) had acted arbitrarily and capriciously--in light of Claxton v. Zolin (1992) 8 Cal.App.4th 553, 10 Cal.Rptr.2d 319--in refusing to reinstate Gustafson's driver's license.

DISCUSSION

At the outset, it is important to emphasize the narrow issue before us. We are not concerned with whether the certified copy of the minute order evinced an "acquittal" for purposes of section 13353.2, subdivision (e). Our focus is on whether Safety Officer Cox's letter response to Gustafson's submittal of the minute order constituted a "determination of [an] administrative proceeding." Since we conclude it did not, it is unnecessary for us to determine whether Cox acted in an "arbitrary or capricious" way in refusing to reinstate Gustafson's driver's license. (See Traverso v. People ex rel. Dept. of Transportation (1996) 46 Cal.App.4th 1197, 1211, 54 Cal.Rptr.2d 434.) Consequently, the award of attorney fees to Gustafson under section 800 must be reversed. ²

We also note that in the trial court the DMV did not raise the issue of whether Safety Officer Cox's letter response to Gustafson's submitted minute order constituted a "determination of [an] administrative proceeding" under section 800. Instead, the DMV at trial focused on whether Cox had acted in an "arbitrary or capricious" way. Nevertheless, on appeal we can consider whether Cox's letter constituted an administrative determination because that issue involves a question of law that does not involve disputed facts. (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341, 303 P.2d 738; Richmond v. Dart Industries, Inc., (1987) 196 Cal.App.3d 869, 879, 242 Cal.Rptr. 184.) " 'The determination of the legal basis for an award of attorney fees is a question of law which we review de novo.' " (Childers v. Edwards (1996) 48 Cal.App.4th 1544, 1547, 56 Cal.Rptr.2d 328, quoting Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 424, 43 Cal.Rptr.2d 595.) We now turn to section 800.

Section 800 states in pertinent part:

" In any civil action to appeal or review the award,finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the State Board of Control, where it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), where he or she is personally obligated to pay the fees, from the public entity, in addition to any other relief granted or other costs awarded."

This court, in Ferris v. Los Rios Community College Dist. (1983) 146 Cal.App.3d 1, 194 Cal.Rptr. 16, construed the section 800 phrase "determination of [an] administrative proceeding." There, part-time instructors of a community college district were successful at trial in compelling the district to grant them status as regular employees. These instructors were also awarded attorney fees pursuant to section 800.

In reversing the award of attorney fees under section 800, the Ferris court stated: "The terms 'award, finding, or other determination' and the term 'administrative proceeding' imply it is not every decision of an administrative official which, on judicial review, may occasion an award of attorney's fees. We concur in the decision in Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435, 444, 173 Cal.Rptr. 294 (accord Williams v. Department of Water & Power (1982) 130 Cal.App.3d 677, 685, 181 Cal.Rptr. 868) that Government Code section 800 is inapplicable except where review is sought of action taken as a result of an administrative hearing required or provided by law. There was none here." (146 Cal.App.3d at p. 11, 194 Cal.Rptr. 16.)

The Wilkerson-Ferris view that some sort of administrative hearing (not necessarily a formal hearing) is required to trigger the fee-shifting provisions of section 800 has met with general approval. (See Los Angeles Police Protective League v. City of Los Angeles (1985) 166 Cal.App.3d 55, 65, 212 Cal.Rptr. 251; Traverso v. People ex rel. Dept. of Transporation, supra, 46 Cal.App.4th at p. 1211, 54 Cal.Rptr.2d 434; Leslie's Pool Mart, Inc. v. Department of Food & Agriculture (1990) 223 Cal.App.3d 1524, 1545-1546, 273 Cal.Rptr. 373; see also Sullivan v. Calistoga Joint Unified School Dist. (1991) 228 Cal.App.3d 1313, 1319, 279 Cal.Rptr. 529; Kistler v. Redwoods Community College Dist. (1993) 15 Cal.App.4th 1326, 1336-1337, 19 Cal.Rptr.2d 417 (Kistler).)

One decision, however, Forrest v. Trustees of Cal. State University & Colleges (1984) 160 Cal.App.3d 357, 206 Cal.Rptr. 595, cautioned that the Legislature in section 800 "chose the broader...