Case Name: Casaca v Department of Motor Vehicles
Case No. 114CV272230

Petition for Writ of Mandate Seeking to Overturn Statutory Revocation of School Bus License

I. Factual and Procedural Background.

According to the petition filed October 22, 2014, Jose R. Moreno Casaca (“Petitioner”) has been a school bus driver for ten years. On an unspecified date, he attended a party where he ate some cookies without knowing they were laced with marijuana. At some point thereafter, his employer, First Student, required him to undergo a random drug test. It was positive for marijuana.

By letter dated September 18, 2014, the employer advised Petitioner that adverse information was obtained from the drug screening that resulted in his immediate removal from service, and placed him on unpaid administrative leave. The letter also included the following notice:

You have the right to refute the information upon which this decision is based. If you wish to appeal these findings, you must contact the Medical Review Officer within 72 hours of the original positive notification. If you have not requested a split specimen within those first 72 hours, First Student will terminate your employment based on the original positive results.

The petition or the exhibits attached thereto do not indicate if Petitioner appealed the findings before the MRO, or requested a split test.

Upon learning of the results of Petitioner’s drug test, the DMV served Petitioner, via US mail sent on October 8, 2014, with an order of revocation of his California Special Driver Certificate. The one-page order notified Petitioner that his special license was revoked effective October 22, 2014, pursuant to Vehicle Code § 13376(b)(1). That section provides in relevant part:
“(b) (1) The department shall revoke a certificate listed in subdivision (a) for three years if the certificate holder refuses to submit to a test for, fails to comply with the testing requirements for, or receives a positive test for a controlled substance, as specified in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations and Section 34520. However, the department shall not revoke a certificate under this paragraph if the certificate holder is in compliance with any rehabilitation or return to duty program that is imposed by the employer that meets the controlled substances and alcohol use and testing requirements set forth in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations. The driver shall be allowed to participate in a rehabilitation or return to duty program only once within a three-year period. The employer or program shall report any subsequent positive test result or drop from the program to the department on a form approved by the department.”

The letter Petitioner received stated that the action was taken because on or about September 11, 2014, Petitioner tested positive for controlled substance, a violation of VC 13376(b)(1).

Furthermore, the revocation order included the following notification: “You are not entitled to a hearing because this action is mandated by the Vehicle Code. You may request a court review of this action by contacting the superior court in your county of residence within 94 days from the mailing date shown below pursuant to §14401 VC.” It also advised Petitioner that he may reapply for the school bus driver certificate “[n]ot less than three (3) years after the effective date of the refusal or revocation pursuant to §13376(b) (1) or §13376(b) (2) VC.”

On October 22, 2014, Petitioner filed his petition before this Court by attaching a copy of the DMV revocation order, print out of his driving record issued by the DMV on 9/18/14, the September 18, 2014 First Student letter with its attachments, and a one page EDD form in Spanish language. A proof of service of the petition with exhibits was filed with the Court on October 29, 2014. Another proof of service of these documents with summons was also filed on November 6, 2014.

On January 14, 2015, Petitioner filed a notice of hearing on his petition for a writ of mandate seeking reinstatement of his school bus driver certificate, or alternatively, to be allowed to enroll in a drug program or placed on probation. A proof of service of this notice of hearing was filed on January 26, 2015. On February 2, 2015, Respondent filed a formal opposition to the petition for writ of mandate.

II. Discussion.

A. Introduction.

As a preliminary matter, the Court observes that the pleadings filed in this case suffer some formal and procedural irregularities. For instance, both Petitioner’s notice of hearing and Respondent’s opposition were untimely filed. (Code of Civil Procedure §§ (“CCP”) 1109, 1005(b); Cal. Rules of Ct., Rules 3.1100, 3.1103(a)(2).) Both the petition and the answer (opposition) to it were unverified. (CCP 1086 and 1089.) Even more, Petitioner did not cite any authority or present any legal argument as to why the relief he seeks ought to be granted. But as the Court of Appeal observed in Lombardi,

It is the duty of a trial judge to see that a cause is not defeated by mere inadvertence[,] by want of attention[,] and to call attention to omissions in the evidence or defects in the pleadings which are likely to result in a decision other than on the merits[,] and within reasonable limits by proper questions to clearly bring out the facts so that the important functions of his [or her] office may be fairly and justly performed. (Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 209. Internal citations and quotations omitted.)

It was also suggested in another case, “[i]t has always been the policy of the courts in California to resolve a dispute on the merits of the case rather than allowing a dismissal on technicality.” (Harding v. Collazo (1986) 177 Cal.App.3d. 1044, 1061 (Acting P.J. Liu, dissenting).)

When faced with similar technical irregularities, largely occurring in cases involving self-represented litigants, Federal courts have also shown preference to determinations on the merits.

Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Where a plaintiff is proceeding pro se, the Court has an obligation to construe the pleadings liberally and to afford the plaintiff the benefit of any doubt. However, pro se pleadings must still allege facts sufficient to allow a reviewing court to determine whether a claim has been stated. (Sepehry-Fard v. Dep’t Stores Nat’l Bank, 15 F.Supp.3d 984, 987 (N.D. Cal. 2014). Internal citations and quotations omitted.)

In the proceeding at hand, Petitioner is representing himself and apparently preparing his own pleadings. Since he has been terminated from his employment as a school bus driver, he may not have the financial means to obtain professional legal assistance in prosecuting his case. The non-monetary nature of this action adds to Petitioner’s inability to hire a lawyer on a contingency basis. The nature of the action also does not allow Petitioner to obtain state appointed counsel as an indigent. Judging from the pleadings he submitted, Petitioner clearly lacks the ability to research the law on his own and prepare code-compliant pleadings in this case. Thus, allowing the apparent technical irregularities to preclude consideration of the merits in this case could essentially mean that Petitioner would never get a fair chance of having his matter heard. If allowed to happen, that would lead to a denial of access to justice and an eventual miscarriage of justice.

Respondent did not raise objections relating to irregularities in Petitioner’s papers, other than the claim that Petitioner failed to allege facts establishing standing and jurisdiction – which the Court will address below. There appears to be no substantive prejudice to Respondent as a result of Petitioner’s defective pleadings. Some of the defects, such as the lack of verification of the Petition, may be cured by the filing of an amendment or oral verification provided by Petitioner under oath at the hearing. (See, for instance, Franchise Tax Bd. v. Municipal Court (1975) 45 Cal. App. 3d 377, 384.) Most importantly, although the petition and notice of hearing are lacking in some respects, the exhibits attached thereto and the opposition memorandum filed by Respondent sufficiently define the issues presented for the Court’s determination. All these factors, together with the general preferences of courts as discussed above, enable this Court to reach a decision on the merits of the case before it.

B. Legal Standards.

A writ of mandate may issue from any court to any inferior tribunal, corporation, board, or person to compel the performance of an act that the law specifically enjoins as a duty from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is unlawfully precluded. The writ must be issued on the verified petition of the party beneficially interested, when there is no plain, speedy, and adequate remedy in the ordinary course of the law (CCP 1085(a), 1086).

“The question of whether there is an adequate legal remedy is one of fact, depending on the circumstances of each particular case, and its determination is a matter largely within the sound discretion of the court ….” (Barnard v. Municipal Court (1956) 142 Cal. App. 2d 324, 327. Citations and internal quotations omitted.)

Superior and appellate courts are authorized to grant extraordinary relief in the nature of mandamus, certiorari, and prohibition. (Cal. Const., art. VI, § 10; VC 14400.) Under modern principles of pleading, neither a mislabeled petition nor a defective prayer bar the relief justified by proper allegations and proof. (Peck’s Liquors, Inc. v. Super. Ct. (1963) 221 Cal. App. 2d 772, 775.)

Judicial review of an administrative decision must be sought within the applicable limitations period. (Barlow v. City Council of Inglewood (1948) 32 Cal. 2d 688, 697; Sinetos v. Department of Motor Vehicles (1984) 160 Cal. App. 3d 1172, 1175;.)

The writ of mandate in this case was filed within 90 days from the date the order of revocation was noticed. (VC 14401(a).)

C. Standing and Jurisdiction.

Respondent argues that the petition is insufficient because “Petitioner has failed to allege that he is beneficially interested in the subject matter of the petition.” Respondent cites in support Driving Sch. Ass’n of Cal. v. San Mateo Union High School Dist. (1992) 11 Cal.App.4th 1513 [without page reference], and Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.App.4th 155, 165. In both these cases, the petitioners are entities seeking relief based on a claim of public interest standing, where as in the present case the Petitioner is a natural person seeking relief in his own behalf.

The records in this case clearly show that Petitioner was a school bus driver who has lost his ability to find gainful employment as a result of the administrative action Respondent has taken by revoking his special certificate. In order to find employment, be it with his former employer or a new employer, Petitioner needs to be in possession of a valid school bus driver special certificate. (VC 12517(a)(1).) He is now seeking relief from this Court ordering the DMV to reverse its revocation of his certificate. Unlike in the cases cited by Respondent where entities seek relief on grounds of public interest standing, Respondent’s action in this case has adversely affected Petitioner directly and personally.

Although not formally articulated in a legal language, the fact that Petitioner is beneficially interested in the subject matter of this action is evident from the petition and accompanying exhibits. Besides, Respondent is not disputing this fact; but merely pointing to the formal irregularity, which the Court already decided should not preclude consideration of the petition on its merits. Thus, Petitioner has met his burden of showing that he is beneficially interested in the subject matter of his petition.

Respondent also argues “petitioner has failed to allege the absence of an alternative plain, speedy or adequate remedy at law.” Again, Respondent is not saying ‘Petitioner has an alternative plain, speedy or adequate remedy at law’, but merely that ‘Petitioner failed to state so in his petition’. On the contrary, a review of the order of revocation, a copy of which Petitioner attached to his petition, advised Petitioner, “[y]ou are not entitled to a hearing because this action is mandated by the Vehicle Code. You may request a court review of this action by contacting the superior court in your county of residence within 94 days from the mailing date shown below pursuant to §14401 VC.”

Similarly, VC 14101(a) provides, “[a] person is not entitled to a hearing […] [i]f the action by the department is made mandatory by this code.” Accordingly, VC 13376(b)(1) states, “[t]he department shall revoke a certificate listed in subdivision (a) for three years if the certificate holder […] receives a positive test for a controlled substance [….]” Respondent’s opposition memorandum also affirms the mandatory nature of this provision. Thus, Petitioner did not have an alternative plain, speedy or adequate remedy at law. Filing this writ action was what was prescribed to him by the Respondent and the relevant statute. Petitioner just did that in a timely manner.

D. Due Process Requirement.

The California Constitution guarantees that a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. (Cal. Const., art. VII, § 7(a).) It also states that the obligations or responsibilities the due process guarantee imposes upon the State or any public entity, board, or official with respect to the use of pupil school assignment or pupil transportation shall not exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution. (Id.)

The Fourteenth Amendment to the Federal Constitution provides that no state shall deprive any person of life, liberty, or property, without due process of law. In the course of interpreting and applying the federal procedural due process clause, courts have long recognized the presence of a protected property right in licenses that enable a person to pursue a profession or earn a livelihood. In Bell v. Burson (1971) 402 U.S. 535.), for instance, the US Supreme Court stated, “[o]nce licenses are issued . . . as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell, supra at p. 539.

In the case at hand, Petitioner pursued his livelihood as a school bus driver for the past ten years. He claims to have a clean driving record and no history of drug use. The positive test result for marijuana that led to revocation of his school bus driver certificate, according to him, was an accident that happened after he ate cookies at a party without knowing they were laced with marijuana. Evidence presented by Petitioner showed that the DMV revoked his certificate without affording him an opportunity to be heard.

Respondent argued revocation was mandated by statute, and thus Petitioner was not entitled to a hearing. The Court is concerned this is in violation of the due process requirement discussed above.
Respondent deprived Petitioner possession and use of his school bus driving certificate, a property interest protected under the procedural due process guarantees of both the US and California constitutions, without a meaningful opportunity to be heard on the matter.

There is scant case law addressing this issue. However, Menge v. Reed (2000) 84 Cal.App.4th 1134, offers this Court some guidance. In Menge, the petitioner, a school bus driver, purportedly provided adulterated urine specimen in a random drug test. Upon learning of the test results, the DMV revoked her school bus driver certificate on the ground that the adulterated specimen constituted a refusal to test. Just like in the present case, the order of revocation informed Menge “she was not entitled to a hearing because the DMV’s revocation was mandatory under the Vehicle Code, but she could nevertheless seek court review of the order by filing a petition for a writ of mandate.” (Menge v. Reed (2000) 84 Cal.App.4th 1134, 1138.) In upholding the lower court’s grant of a writ in favor of the driver, the Court of Appeal stated:

Given Menge’s significant interest in being certified to pursue her chosen vocation of school bus driver, due process requires that she be afforded a hearing at which evidence may be presented challenging the test result. In the absence of any hearing before the District or Board that is binding on the DMV, a prerevocation hearing must be provided by the DMV. (Id., at 1142.)

If given the opportunity to be heard, “Menge may introduce evidence concerning the chain of custody of the sample, character evidence, or other evidence tending to show she did not adulterate the specimen.” (Id., at 1144.)

Although the Petitioner in the present case is not contesting the test results as such (at least for purposes of this action), if afforded a DMV hearing, the possibility exists Petitioner could introduce evidence that pursuant to Vehicle Code § 13376(b)(1) he has enrolled in and is in compliance with a rehabilitation or return to duty program imposed by his employer that meets the controlled substances and alcohol use and testing requirements set forth in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations. Or, at such a hearing, Petitioner may introduce evidence showing that this was a one-time incident that happened without his knowledge and control. Whether such evidence would help Petitioner to avoid revocation of his certificate, or make him eligible to a less drastic measure, is a matter to be determined by the DMV. But the point remains that due process requires the DMV to grant a meaningful opportunity for Petitioner to be heard on the issue of the drug test result before revocation of his certificate. “[D]ue process required a [pre-revocation] hearing–even though the statutes mandated that [revocation] orders be issued without a hearing–in light of the magnitude of a person’s significant interest in retaining his driver’s license and use of his vehicle. (Id.; citing Rios v. Cozens (1973) 7 Cal. 3d 792, 795 superceded by statute.)

As this issue was not raised by either side, the Court will allow further briefing on this topic, the scheduling of which will be determined at the hearing on this matter.