See page 11-48 for information about objecting to excessive delay in holding the hearing and making a decision following the hearing.
D.M.V hearing officers often come to Admin Per Se (APS) hearings unprepared to present their cases. When you point out the defects they routinely grant themselves a continuance, which they often refer to as a "reconvening". The form set forth below is designed to counter this practice. It was created with the help of Fremont attorney and then C.D.D. President J. Thomas Sherrod (510 796 4444).
PRACTICE TIP: If the D.M.V. denies this motion to set aside, or more likely just refuses to give you a hearing on it, the only appropriate relief is by way of a C.C.P. §1085 writ. It allows Superior Court review of a non-final order of an administrative agency, and a stay in the proceedings while the writ is decided.
Be sure to allege, as part of your §1085 writ petition, that you have fully exhausted administrative remedies. This may be as simple as saying that you filed a written objection to the continuance with the D.M.V., they denied it or refused to hear it, and there is no other procedure available to further contest the matter within the administrative proceeding. See, Shively v. Stewart (1966) 65 C2d 475, 55 CR 217.
See page 11-45 for more information on the C.C.P. §1085 writ.
The following caption is for use when filing this form with the D.M.V. For other situations paste the text into your pleadings where appropriate.
[CLARENCE DARROW, ESQ. (SBN#00003)
1561 Main St.
Anytown, CA 94538
707 459 3998]
Attorney for [Respondent],
[Joseph G. Nizeguy]
DEPARTMENT OF MOTOR VEHICLES
STATE OF CALIFORNIA
THE MATTER OF THE ) Driver's License No. [N0084786] HEARING CONCERNING ) THE DRIVING ) [MOTION FOR SET ASIDE; PRIVILEGE OF: ) POINTS AND AUTHORITIES ) IN SUPPORT] [JOSEPH G. NIZEGUY] ) )
NOTICE IS HEREBY GIVEN THAT: [JOSEPH G. NIZEGUY] (hereinafter referred to as "[Respondent]"), through his attorney of record, [CLARENCE DARROW, ESQ.], moves this agency, in accordance with the provisions of Cal. C. of Regs., Title 13, §§ 115.08, for a set aside of the suspension or revocation order herein on the grounds that the hearing in the above-entitled matter was continued without good cause by the Department of Motor Vehicles (hereinafter referred to as "D.M.V."). This motion is made on the grounds set forth herein:
The record reflects an allegation that [Respondent] was arrested on [September 10, 1998], for a violation of [Veh. C. §23152]1, and served on that date with an order of suspension pursuant to [§13353.2], with an effective date 30 days later ([October 10, 1998]).
1. All further references to code sections are to the Vehicle Code unless otherwise stated.
[Six] days after service of the order, on [September 16, 1998], [Respondent] requested a hearing under §14100. In response, the D.M.V. set a hearing date for [64 days after the request, on December 10, 1998]. The D.M.V. also imposed a remedial stay of the suspension because the request was made within the statutory 10-day time limit (§13558, subdivision (b)), and the D.M.V. failed to conduct the hearing before the suspension effective date (§13558, subdivision (e)).
It has become routine practice to decide, after hearing the [Respondent's] case, what ebuttal witnesses to subpoena to a continued hearing.2
2. For instance, in Chapter 12 - ADMINISTRATIVE PER SE (APS) HEARINGS (Rev. 4/30/96) in the D.M.V.'s Driver Safety Manual (Sacramento, CA: D.M.V.) page 12.19, it says, "If you need the officer(s) or another witness to clarify an issue or a sub-issue during the hearing, declare a continuance and arrange to issue a subpoena."
The above-mentioned Chapter 12 of the Driver Safety Manual is available from Fast Eddie Publishing Company. See page 11-1 for more information on ordering it.
[Respondent], [Respondent's] attorney and [Respondent's] expert witness appeared at the appointed date and time for the hearing, all at great expense to the [Respondent]. But instead of conducting a hearing, the hearing officer announced that, upon review of the file a few days earlier it had been discovered that information supplied by the arresting officer was not sufficient to establish the D.M.V.'s prima facie case and that this necessitated a subpoena of the officer and a continuance of the hearing date.
D.M.V. hearing officers sometimes state that they are "reconvening" the hearing at a later date, rather than saying that they are requesting or declaring a continuance. They do have authority to take additional evidence or reopen a hearing, but it must be either with the respondent's consent, or administrative review has been requested, granted, and determined (see page 11-46). This sort of reconvening is nothing more than a continuance in disguise. Don't let it deter you.
In such a case, you'll need to alter the previous paragraph and state that the continuance was referred to as "reconvening", but it was really a continuance, and briefly cite the authorities from page 11-46 in a footnote. If you have a chance to object orally at the hearing, state it as, "When you say you're reconvening the hearing I take it that you are granting your own request for a continuance and I'm objecting to that request".
The D.M.V. made no showing of either materiality of the proposed new evidence, due diligence in obtaining it, or any sort of good cause in support of a continuance. Nevertheless, the D.M.V. granted the request and stated that [Respondent's] attorney would be notified by telephone of the new date. It's now two days later, and there has been no notification.
Hearing Procedures Are Controlled by the Vehicle Code, the Government Code and the Code of Civil Procedure.
Veh. C. §13558 gives [Respondent] the right to a hearing under procedures set forth in §§ 14100 et seq. on the pending order of suspension in this case, and itself designates some specific procedures for that hearing (§14100(a); Frankhauser v. Orr (1968) 268 CA2d 418, 74 CR 61; Noll v. D.M.V. (1969) 274 CA2d 281, 79 CR 236; Coombs v. Pierce (1991) 1 CA4th 568, 2 CR2d 249). Thus, both §13558 and §§ 14100 et seq. control the procedure for the hearing. Furthermore, general principles of statutory interpretation dictate that where §13558 and §§ 14100 et seq. are in conflict, §13558 is controlling, because it is the more specific.
Included within this statutory scheme is §14112, which provides that anything not covered by the applicable Vehicle Code sections is controlled by the California Administrative Procedure Act (A.P.A.) (Coombs, supra). The A.P.A. is contained in Gov. C. §§ 11400 et seq. (despite the §14112 reference to Gov. C. §§ 11500 et seq. (Gov. C. §§ 11370 and 11400(b))).
Thus, hearing procedures in this case are first covered by §13558, and where it is silent, §§ 14100 et seq. Where those statutes are both lacking we look to §§ 11400 et seq. of the Government Code. And of course, since this is a civil proceeding, anything not otherwise covered is controlled by the Code of Civil Procedure.3
3. Gov. C. §11415.20 states: "A state statute or a federal statute or regulation applicable to a particular agency or decision prevails over a conflicting or inconsistent provision of this chapter". Nowhere is it stated that the Code of Civil Procedure does not apply to hearings conducted under the A.P.A. See also, Arnett, infra.
Administrative Procedure Act Allows Continuance Only for Good Cause.
Generally speaking, the grounds for granting and denying continuances in administrative proceedings are the same as those in civil proceedings in general (Arnett v. Office of Administrative Hearings (1996) 49 CA4th 332, 342, 56 CR2d 774). Continuances are granted over objection only for good cause (id.). In administrative proceedings, the good cause requirement is set forth in the A.P.A. Gov. C. §11524, subdivision (b), provides:
"(b) When seeking a continuance, a party shall apply for the continuance within 10 working days following the time the party discovered or reasonably should have discovered the event or occurrence which establishes the good cause for the continuance. A continuance may be granted for good cause after the 10 working days have lapsed if the party seeking the continuance is not responsible for and has made a good faith effort to prevent the condition or event establishing the good cause."4
4. Section 11524(a) codifies the principle in Shoults v. Alderson (1921) 55 CA 527, 531, 203 P 809, and well-established judicial precedent that administrative agencies have the inherent power to grant continuances.
Note that Cal. C. of Regs., Title 13, §115.08 subdivision (b), applicable here (id., §115.01), says,
"(b) Except as provided in subdivision (d), a motion to continue a case shall be made pursuant to Section 11524 of the Government Code".
Subdivision (d) requires that,
"A motion shall be made and filed at least 5 business days before the date set for the commencement of the hearing."
To the extent that this regulation conflicts with the 10-day
limit of Gov. C. §11524, it must be declared invalid (Gov. C.
Under this statutory language, an agency can grant a continuance only on a showing of good cause. The statute also includes a diligence requirement, requiring a request for a continuance within 10 working days of discovering the need for it, and within 10 working days when a party should have discovered such a need.
Arnett, supra, elaborates on the showing required under the "good cause" standard:
"In exercising the power to grant continuances an administrative law judge must be guided by the same principles applicable to continuances generally in adjudicative settings. In this respect the litany must be `that `continuances be granted sparingly, nay grudgingly, and then only on a proper and adequate showing of good cause.' ' (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781, 140 Cal.Rptr. 383.) In general, a continuance for a short and certain time is less objectionable than a continuance for a long and uncertain time (see Palomar Mortgage Co. v. Lister (1963) 212 Cal.App.2d 236, 238, 27 Cal.Rptr. 863; Cohen v. Herbert (1960) 186 Cal.App.2d 488, 495-496, 8 Cal.Rptr. 922), and obviously there must be a substantial showing of necessity to support a continuance into the indefinite future. But `[t]he factors which influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion.' (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, §9, p. 26; Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1007, 98 Cal.Rptr. 855.) And, since it is impossible to foresee or predict all of the vicissitudes that may occur in the course of a contested proceeding (Hays v. Viscome (1953) 122 Cal.App.2d 135, 141, 264 P.2d 173, 39 A.L.R.2d 1435), the determination of a request for a continuance must be based upon the facts and circumstances of the case as they exist at the time of the determination."
Good Cause for Continuance to Obtain Absent Evidence Requires Showing Due Diligence and Materiality.
C.C.P. 595.4 provides:
"A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. . . . "
This statute embodies the basic principle of the law that each party is entitled to expect the other to adequately prepare beforehand. Each has the right to expect the other to come to an evidentiary hearing prepared with its evidence and ready to proceed (see, e.g., Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverage Control (1966) 65 C2d 349, 55 CR 23; County of San Bernardino v. Doria Mining and Engineering Corp. (1977) 72 CA3d 776, 781, 140 CR 383, 386 - "We cannot permit the courts to become a sanctuary for chronic procrastination and irresponsibility on the part of either litigants or their attorneys."; Ring v. Smith (1970) 5 CA3d 197, 200, 85 CR 227, 229 - Same, administrative hearing).
Gov. C. §11524 requires a showing of good cause for a continuance of an administrative hearing. No good cause showing can be made where a party seeks a continuance to present absent evidence without the showing of materiality and due diligence required by C.C.P. §595.4. [Where a party seeks a continuance of an administrative hearing for the purpose of presenting the testimony of an absent witness, the party must make a showing of the materiality of that witness's testimony and of due diligence in attempting to procure it. Without such a showing there can be no good cause.]
C.C.P. §595.4 requires that each party to a proceeding be obliged to prepare his or her case adequately and to anticipate the opponent's case and come prepared to meet it. [One may not simply stroll into a hearing months after its date is known and announce that preparation was begun only a few days earlier and it was then discovered that the party has no case to present and needs more time to prepare. Likewise, one may not listen to the opponent's evidence and then after hearing it decide that he or she needs more time to prepare and present a better case.] The following text covers the situation where the additional evidence takes the form of the testimony of a witness who has not been subpoenaed.
No Continuance Where No Effort Made to Subpoena a Witness Who Doesn't Appear.
From the foregoing it seems a logical step that no continuance can be granted to present the testimony of a witness who does not appear where no effort was made to subpoena the witness beforehand. And in fact, that is the law of this state. Gov. C. §11450.20, subdivision (b), provides, in relevant part:
"(b) . . . A party requesting a continuance based upon the failure of a witness to appear in court at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove to the court that the party has complied with this section [requiring issuance and service of a subpoena]. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law."5
5. The references to "court" are apparently typos, borrowed without proper editing from the corresponding statutes governing court trials in the Code of Civil Procedure.
On its face, this statute means that in order to obtain a continuance to present the testimony of a non-appearing witness, a subpoena must have been both previously issued and previously served on the witness who nevertheless failed to appear.
Case authority holds similarly. In Scott v. Pierce (1990) 221 CA3d 654, 657, 271 CR 9, the respondent driver made no attempt at all to subpoena the arresting officer whose testimony he wanted to present (he relied instead on the D.M.V.'s subpoena of the witness). The opinion held that if a party desires the testimony of a witness, the burden is on that party to secure the witness's attendance by subpoena.
The California Supreme Court opinion in Parris v. Zolin (1996) 12 C4th 839, 852, 50 CR2d 109, 118, also makes the point. The D.M.V. argued correctly that one may complain of a missing witness only when one has made a good faith attempt to secure that witness's attendance. In Parris, the respondent demanded that the D.M.V. enforce a subpoena he had served on a witness who failed to appear. Though no continuance was requested (the hearing officer denied the enforcement request and concluded the hearing with a decision against the respondent), the Supreme Court enforced the respondent's demand that the hearing officer compel the witness's attendance. In effect, the court directed a continuance for good cause to compel the attendance of an absent witness. It did so only because that witness had been properly served with a subpoena, the need for which was a point argued forcefully by the D.M.V..
In Monaghan v. D.M.V. (1995) 35 CA4th 1621, 1626, 42 CR2d 167, the opinion held that the respondent driver could not complain of the non-appearance of the prosecution's criminalist where he had made no effort subpoena that witness.
See also, Dresser v. Board of Medical Quality Assurance (1982) 130 CA3d 506, 517-518, 181 CR 797, 803 - Continuance denied to secure attendance of unsubpoenaed expert witness; and Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverage Control (1966) 65 C2d 349, 55 CR 23 - Same, documents.
In conclusion, it can be said that Gov. C. §11450.20, read in conjunction with Gov. C. §11524, C.C.P. §595.4, and relevant case authority, mean that a party seeking to present absent evidence, in the form of the testimony of a witness, is entitled to a continuance over objection by the opposing party, only if,
(1) A subpoena has been previously issued to the party for that person's attendance, and,
(2)(a) The party has either properly served the witness who then failed to appear, OR (b) The party has attempted to properly serve the witness, but was unable to do so in the exercise of due diligence, and,
(3) A showing is made of the materiality of the witness's testimony, and,
(4) The requesting party is not responsible for the failure of the witness to appear, and,
(5) The continuance shall only be for so long as it takes to personally serve the witness and obtain his or her appearance, with due diligence, but not longer than allowed by other law.
Here the D.M.V. failed to show that it made any attempt whatsoever to consider the possible need for its witness until a few days before the scheduled date for the hearing, though it had more than two months within which to do so. But even then, it made no attempt to issue a subpoena or attempt to serve it prior to the hearing. It then offered no explanation for these neglects and made no showing of the need for the witness's testimony.
Under such circumstances, to grant a continuance over objection, on the day of the hearing, is an abuse of discretion and denies to [Respondent] due process and his right to a fair, impartial and speedy hearing.
The hearing was continued without good cause and the D.M.V. has lost jurisdiction due to its excessive delay. [Respondent] does therefore demand an immediate set aside of the [suspension] [revocation] order herein.
[Clarence Darrow, Esq.]
Attach a proof of service in accordance with the requirements of Cal. C. of Regs., Title 13, §§ 115.08 (see page 11-65).
Tips | Arrested for DUI | Attorney's
Defense Guide | Publications | Blood
Alcohol Level | California DMV
Home | Search | Contact Us
Copyright © 1996-2000 - Ed Kuwatch
This entire website is copyrighted.