Preview
ELECTRONICALLY FILED
BREHMER LAW CORPORATION 8/10/2021 11:55 AM
Kern County Superior Court
Jeremy C. Brehmer SBN 27 1395
By Yesenia Sanchez, Deputy
Jared M. Thompson SBN 261942
1200 Truxtun Avenue, Suite 120
Bakersfield, CA 93301
Telephone: (661) 447-43 84
Facsimile: (661) 447-4385
eGoflaUlébJMr—I
Attorney for Petitioner, Andrea Palacios
SUPERIOR COURT OF THE STATE 0F CALIFORNIA
COUNTY OF KERN, METROPOLITAN DIVISION
Case No.: BCV-21-10175 1-SDS
ANDREA PALACIOS,
EX PARTE APPLICATION FOR
Petitioner, STAY PENDING DETERMINATION
OF PETITION FOR WRIT OF
MANDATE
vs.
NNNNNMNNNr—cr—AI—Ir—An—IHy—II—II—iu—I
DEPARTMENT OF MOTOR D t: A
t11,2021
VEHICLES, an agency of the State of
T36: 83%“: m
by and through
California, its Director
Dept u 18.
Steve Gordon,
OONJQUIbWNi—‘OOOOQ@MAUJNHO
Respondent.
TO THE RESPONDENT DEPARTMENT OF MOTOR VEHICLES, AN AGENCY OF
THE STATE 0F CALIFORNIA, BY AND THROUGH ITS DIRECTOR STEVE
GORDON:
COMES NOW Petitioner Andrea Palacios and hereby requests of this Court an
order directed to the Department 0f Motor Vehicles, an agency of the State of California,
to stay the operation of the Department's Order issued July 2, 2021 suspending Petitioner's
driver’s license for the period from July 11, 2021 through July 10, 2022, and all further
EX Parts Application for Stay
proceedings thereon, until final determination by this Court 0n the Petition for Writ 0f
Mandate.
This request is based on the supporting Declarations and on the points and
authorities attached hereto.
\DOONQUI#UJNH
POINTS AND AUTHORITIES IN SUPPORT OF REQUEST FOR STAY OF
ENFORCEIVEENT OF ADMINISTRATIVE ORDER
I. INTRODUCTION
This Ex Parte application for stay of the suspension of Petitioner’s driver’s license
seeks to remedy and halt the arbitrary, capricious, and unlawful actions of Department of
Motor Vehicles and its appointed hearing officer. The application is based 0n his arbitrary
and capricious decision t0 suspend petitioner’s driver’s license without sufficient evidence.
The petitioner presented unbiased Video evidence establishing that the officer misadvised the
petitioner as to her rights and responsibilities pursuant t0 Miranda and VC §23612. The
officer clearly induced confusion in the petitioner in his manner of advising her and the
hearing officer agreed that the petitioner was confused prior to refiJsing.
NNNNNNNNMI—‘h—IHI—Iy—y—AHp—HH
Without a stay ofenforcement, the purposes of a Writ ofMandate Will be lost before
the matter may reach final determination by this Court because Petitioner would be
OCNONMVPUJNHONOOCQQthWNHO deprived of a substantial right, her driving right, and by extension, her ability to perform
her job duties, and her ability to provide for herself.
II. THE COURT MUST UTILIZE ITS AUTHORITY T0 STAY THE SUSPENSION T0
ENSURE JUSTICE BECAUSE PUBLIC SAFETY IS SECURE, AND DENIAL 0F A
STAY WOULD DEPRIVE PETITIONER 0F THE BENEFITS 0F THE APPEAL.
California Code of Civil Procedure section 128(a) provides, in relevant part, that
“[e]very court shall have the power to amend and control its process and orders so as t0
make them conform t0 justice.” Under section 128, a court may grant a stay 0f the
EX Parte Application for Stay
suspension 0f a driving right pending proceedings before that court to determine if the
respondent unlawfully denied the petitioner’s right to drive. Further, California Code 0f
Civil Procedure section 1094.5(h)(1) provides that in writ proceedings t0 appeal the
decision of a state agency made after a hearing conducted under the Administrative
Procedures Act (Section 11500 et seq. 0f the Government Code) the court may stay the
\OOONJQU‘I-mep—
decision pending the judgment 0f the comt as long as the public interest will not suffer and
that the agency is unlikely to prevail ultimately on the merits. California Vehicle Code
section 141 12 explicitly makes the Administrative Procedures Act (Section 11500 et seq.
of the Government Code) applicable t0 Administrative Per Se hearings. Therefore, this
section governs the Court’s discretion to grant a stay over section 1094.5(g). An appellate
court may grant a stay where the denial of a stay would deprive the appellant of the fruits
0f his appeal should he be successfill. Deepwell Homeowners Protection Assn. v. City
Council ofPaZm Springs (1965) 239 Cal.App.2d 63. “It would be a terrible situation if in
a proper case an appellate court were powerless t0 prevent a judgment fiom taking effect
during appeal, if the result would be a denial 0f the appellant's rights if his appeal were
successful.” Id. at 66.
Neither Vehicle Code section 14401 nor Vehicle Code section 13559 precludes this
NNNMNNNNNHHp—‘r—IHb—Amu—Hy—n
Court fiom exercising its independent discretion t0 grant a request for a stay. These sections
OONONUIADJNHOKOOOQONUI-bWNF—‘O
indicate only that filing a petition for Writ ofMandate does not, by itself, stay the execution
of the administrative per se order of suspension.
A court must stay an action by an agency, such as the Department ofMotor Vehicles
(DMV), that has great impact on the liberty 0f an individual. In this case, a stay does not
decrease the penalty set forth by the DMV, because the entire term 0fthe suspension would
take effect if the Court ultimately denies the relief requested, though that is extremely
unlikely in this instance. If, however, the Court does not grant a stay, but finally issues the
writ of mandate, Petitioner Will have unnecessarily suffered denial of an essential liberty,
her driver’s license, Which would cause significant hardship.
EX Parte Application for Stay
a. A Driver’s License Is a Fundamental Right Recognized by California
and Federal Courts.
The California Supreme Court in Berlingheri v. DMV(1982) 33 Ca1.3d 392 recognized
that the continued possession of one’s license is a vested, fundamental right that is protected
by the United States Constitution through the Fourteenth Amendment. The
Court noted:
\oooxmmm-nme
In determining whether the right [to drive] is fundamental the
court does not alone weigh the economic aspect 0f it, but the
effect of it in human terms and the importance of it to the
individual in the life situation.” The Court proceeded t0 state:
“We conclude that the decision to suspend a driver’s license has
a substantial effect 0n a right which, for the purpose ofjudicial
review 0f an administrative decision, can only be considered as
fundamental [T]he basic consideration in determining
. . .
whether a right is ‘fundamental’ focuses upon the importance 0f
the affected right to the individual Who stands in jeOpardy 0f
losing it.
The United States Court of Appeals for the Ninth Circuit has gone filrther and held
that the revocation 0f a driver’s license involves a deprivation of a federal liberty right. That
court adopted the First Circuit’s reasoning and found that “the use of a motor vehicle is a
NNNNNNNMMr—I—AHHHHr—nr—Ir—au—A
‘liberty’ interest protected by due process. Therefore, the . . . suspension 0f [] a motor vehicle
license must comport With the due process requirements of the Fourteenth Amendment.”
WNQM-PWNHoomNCNM-BWNHO
Shuman v. California (1978) 584 F. 2d 868.
b. Petitioner’s Liberty Interests are not Inconsistent with Public Safety
Concerns.
Courts routinely issue stays in criminal cases far more serious than the instant case,
pending judicial review. For example, courts allow persons who are subject t0
imprisonment t0 post bail. Indeed, if it is not a capital offense, Penal Code section 1271
allows bail before conviction “as a matter 0f right.” Certainly, if courts allow potentially
EX Parte Application for Stay
dangerous criminals out of custody pending review 0f their cases, the Court may stay this
far less serious matter without undue burden t0 the public safety.
If the Court were t0 balance the Petitioner’s liberty interests against the interests 0f
public safety as a whole, the evidence weighs in favor 0f Petitioner’s individual liberties.
CWNQU‘I-PLNNH
While the burden to Petitioner of a license suspension is severe, the risk to public safety if
Petitioner continues to drive is 10W. Petitioner is an accomplished and productive young
woman who has already started a career and earns a livelihood. She is responsible in her
job performance, her attention to her responsibilities, both professionally and personally.
Additionally, Petitioner is required to drive to various properties 0n the daily basis
as part 0f her work in the insurance industry. She cannot perform her duties Without a
driver’s license and there is no alternative transportation given the amount of driving she
must engage in.
Petitioner has no prior criminal record. Petitioner has no prior DUI arrests, no prior
citations, and no prior accidents. Furthermore, the court is not without the ability to set
conditions 0n the petitioner’s ability to drive. Petitioner must be allowed to drive for her
education and schooling, but the court can impose other standard conditions, such as not
to drive With any measurable amount of alcohol.
NNNNNNNMMa—ti—‘r—Ip—Ir—IHr—tn—IHH
The license suspension is an extreme hardship t0 Petitioner because it severely
affects her livelihood and career. The severe hardship t0 Petitioner if her license were to
OOQQM-bWNHOOOOQQM-BWNHO
remain suspended outweighs any public safety concerns in this case.
III. CONCLUSION.
Without a stay 0f enforcement, Petitioner would suffer the loss of her driving right
until this Court reaches a final determination in the matter. If that were t0 occur, Petitioner
would suffer irreparable harm due to the impact on her career and livelihood. Petitioner’s
job and livelihood would be adversely effected because 0f the egrcgious decision 0f the
Ex Parte Application for Stay
DMV hearing officer, who acted unlawfully and arbitrarily, abusing his discretion in failing
to consider the evidence fairly 0r objectively.
Petitioner therefore respectfiJlly requests that this Court stay the enforcement of the
administrative orders in this matter pending final adjudication of the verified Petition for
Writ 0f Mandate.
KOOOVQUI-PUJNH
Respectfillly submitted,
DATED: August 9, 2021 . BREHMER LAW CORPORATION
/7//
JarMhompson, Attorney for Petitioner
NNNNNNNNNI—IHFAI—AHHHHHH
OOQQM$WNHOKOOOHQUI$UJNHO
Ex Parte Application for Stay
Preview
ELECTRONICALLY FILED BREHMER LAW CORPORATION 8/10/2021 11:55 AM Kern County Superior Court Jeremy C. Brehmer SBN 27 1395 By Yesenia Sanchez, Deputy Jared M. Thompson SBN 261942 1200 Truxtun Avenue, Suite 120 Bakersfield, CA 93301 Telephone: (661) 447-43 84 Facsimile: (661) 447-4385 eGoflaUlébJMr—I Attorney for Petitioner, Andrea Palacios SUPERIOR COURT OF THE STATE 0F CALIFORNIA COUNTY OF KERN, METROPOLITAN DIVISION Case No.: BCV-21-10175 1-SDS ANDREA PALACIOS, EX PARTE APPLICATION FOR Petitioner, STAY PENDING DETERMINATION OF PETITION FOR WRIT OF MANDATE vs. NNNNNMNNNr—cr—AI—Ir—An—IHy—II—II—iu—I DEPARTMENT OF MOTOR D t: A t11,2021 VEHICLES, an agency of the State of T36: 83%“: m by and through California, its Director Dept u 18. Steve Gordon, OONJQUIbWNi—‘OOOOQ@MAUJNHO Respondent. TO THE RESPONDENT DEPARTMENT OF MOTOR VEHICLES, AN AGENCY OF THE STATE 0F CALIFORNIA, BY AND THROUGH ITS DIRECTOR STEVE GORDON: COMES NOW Petitioner Andrea Palacios and hereby requests of this Court an order directed to the Department 0f Motor Vehicles, an agency of the State of California, to stay the operation of the Department's Order issued July 2, 2021 suspending Petitioner's driver’s license for the period from July 11, 2021 through July 10, 2022, and all further EX Parts Application for Stay proceedings thereon, until final determination by this Court 0n the Petition for Writ 0f Mandate. This request is based on the supporting Declarations and on the points and authorities attached hereto. \DOONQUI#UJNH POINTS AND AUTHORITIES IN SUPPORT OF REQUEST FOR STAY OF ENFORCEIVEENT OF ADMINISTRATIVE ORDER I. INTRODUCTION This Ex Parte application for stay of the suspension of Petitioner’s driver’s license seeks to remedy and halt the arbitrary, capricious, and unlawful actions of Department of Motor Vehicles and its appointed hearing officer. The application is based 0n his arbitrary and capricious decision t0 suspend petitioner’s driver’s license without sufficient evidence. The petitioner presented unbiased Video evidence establishing that the officer misadvised the petitioner as to her rights and responsibilities pursuant t0 Miranda and VC §23612. The officer clearly induced confusion in the petitioner in his manner of advising her and the hearing officer agreed that the petitioner was confused prior to refiJsing. NNNNNNNNMI—‘h—IHI—Iy—y—AHp—HH Without a stay ofenforcement, the purposes of a Writ ofMandate Will be lost before the matter may reach final determination by this Court because Petitioner would be OCNONMVPUJNHONOOCQQthWNHO deprived of a substantial right, her driving right, and by extension, her ability to perform her job duties, and her ability to provide for herself. II. THE COURT MUST UTILIZE ITS AUTHORITY T0 STAY THE SUSPENSION T0 ENSURE JUSTICE BECAUSE PUBLIC SAFETY IS SECURE, AND DENIAL 0F A STAY WOULD DEPRIVE PETITIONER 0F THE BENEFITS 0F THE APPEAL. California Code of Civil Procedure section 128(a) provides, in relevant part, that “[e]very court shall have the power to amend and control its process and orders so as t0 make them conform t0 justice.” Under section 128, a court may grant a stay 0f the EX Parte Application for Stay suspension 0f a driving right pending proceedings before that court to determine if the respondent unlawfully denied the petitioner’s right to drive. Further, California Code 0f Civil Procedure section 1094.5(h)(1) provides that in writ proceedings t0 appeal the decision of a state agency made after a hearing conducted under the Administrative Procedures Act (Section 11500 et seq. 0f the Government Code) the court may stay the \OOONJQU‘I-mep— decision pending the judgment 0f the comt as long as the public interest will not suffer and that the agency is unlikely to prevail ultimately on the merits. California Vehicle Code section 141 12 explicitly makes the Administrative Procedures Act (Section 11500 et seq. of the Government Code) applicable t0 Administrative Per Se hearings. Therefore, this section governs the Court’s discretion to grant a stay over section 1094.5(g). An appellate court may grant a stay where the denial of a stay would deprive the appellant of the fruits 0f his appeal should he be successfill. Deepwell Homeowners Protection Assn. v. City Council ofPaZm Springs (1965) 239 Cal.App.2d 63. “It would be a terrible situation if in a proper case an appellate court were powerless t0 prevent a judgment fiom taking effect during appeal, if the result would be a denial 0f the appellant's rights if his appeal were successful.” Id. at 66. Neither Vehicle Code section 14401 nor Vehicle Code section 13559 precludes this NNNMNNNNNHHp—‘r—IHb—Amu—Hy—n Court fiom exercising its independent discretion t0 grant a request for a stay. These sections OONONUIADJNHOKOOOQONUI-bWNF—‘O indicate only that filing a petition for Writ ofMandate does not, by itself, stay the execution of the administrative per se order of suspension. A court must stay an action by an agency, such as the Department ofMotor Vehicles (DMV), that has great impact on the liberty 0f an individual. In this case, a stay does not decrease the penalty set forth by the DMV, because the entire term 0fthe suspension would take effect if the Court ultimately denies the relief requested, though that is extremely unlikely in this instance. If, however, the Court does not grant a stay, but finally issues the writ of mandate, Petitioner Will have unnecessarily suffered denial of an essential liberty, her driver’s license, Which would cause significant hardship. EX Parte Application for Stay a. A Driver’s License Is a Fundamental Right Recognized by California and Federal Courts. The California Supreme Court in Berlingheri v. DMV(1982) 33 Ca1.3d 392 recognized that the continued possession of one’s license is a vested, fundamental right that is protected by the United States Constitution through the Fourteenth Amendment. The Court noted: \oooxmmm-nme In determining whether the right [to drive] is fundamental the court does not alone weigh the economic aspect 0f it, but the effect of it in human terms and the importance of it to the individual in the life situation.” The Court proceeded t0 state: “We conclude that the decision to suspend a driver’s license has a substantial effect 0n a right which, for the purpose ofjudicial review 0f an administrative decision, can only be considered as fundamental [T]he basic consideration in determining . . . whether a right is ‘fundamental’ focuses upon the importance 0f the affected right to the individual Who stands in jeOpardy 0f losing it. The United States Court of Appeals for the Ninth Circuit has gone filrther and held that the revocation 0f a driver’s license involves a deprivation of a federal liberty right. That court adopted the First Circuit’s reasoning and found that “the use of a motor vehicle is a NNNNNNNMMr—I—AHHHHr—nr—Ir—au—A ‘liberty’ interest protected by due process. Therefore, the . . . suspension 0f [] a motor vehicle license must comport With the due process requirements of the Fourteenth Amendment.” WNQM-PWNHoomNCNM-BWNHO Shuman v. California (1978) 584 F. 2d 868. b. Petitioner’s Liberty Interests are not Inconsistent with Public Safety Concerns. Courts routinely issue stays in criminal cases far more serious than the instant case, pending judicial review. For example, courts allow persons who are subject t0 imprisonment t0 post bail. Indeed, if it is not a capital offense, Penal Code section 1271 allows bail before conviction “as a matter 0f right.” Certainly, if courts allow potentially EX Parte Application for Stay dangerous criminals out of custody pending review 0f their cases, the Court may stay this far less serious matter without undue burden t0 the public safety. If the Court were t0 balance the Petitioner’s liberty interests against the interests 0f public safety as a whole, the evidence weighs in favor 0f Petitioner’s individual liberties. CWNQU‘I-PLNNH While the burden to Petitioner of a license suspension is severe, the risk to public safety if Petitioner continues to drive is 10W. Petitioner is an accomplished and productive young woman who has already started a career and earns a livelihood. She is responsible in her job performance, her attention to her responsibilities, both professionally and personally. Additionally, Petitioner is required to drive to various properties 0n the daily basis as part 0f her work in the insurance industry. She cannot perform her duties Without a driver’s license and there is no alternative transportation given the amount of driving she must engage in. Petitioner has no prior criminal record. Petitioner has no prior DUI arrests, no prior citations, and no prior accidents. Furthermore, the court is not without the ability to set conditions 0n the petitioner’s ability to drive. Petitioner must be allowed to drive for her education and schooling, but the court can impose other standard conditions, such as not to drive With any measurable amount of alcohol. NNNNNNNMMa—ti—‘r—Ip—Ir—IHr—tn—IHH The license suspension is an extreme hardship t0 Petitioner because it severely affects her livelihood and career. The severe hardship t0 Petitioner if her license were to OOQQM-bWNHOOOOQQM-BWNHO remain suspended outweighs any public safety concerns in this case. III. CONCLUSION. Without a stay 0f enforcement, Petitioner would suffer the loss of her driving right until this Court reaches a final determination in the matter. If that were t0 occur, Petitioner would suffer irreparable harm due to the impact on her career and livelihood. Petitioner’s job and livelihood would be adversely effected because 0f the egrcgious decision 0f the Ex Parte Application for Stay DMV hearing officer, who acted unlawfully and arbitrarily, abusing his discretion in failing to consider the evidence fairly 0r objectively. Petitioner therefore respectfiJlly requests that this Court stay the enforcement of the administrative orders in this matter pending final adjudication of the verified Petition for Writ 0f Mandate. KOOOVQUI-PUJNH Respectfillly submitted, DATED: August 9, 2021 . BREHMER LAW CORPORATION /7// JarMhompson, Attorney for Petitioner NNNNNNNNNI—IHFAI—AHHHHHH OOQQM$WNHOKOOOHQUI$UJNHO Ex Parte Application for Stay