Filed 7/27/21 Tilton v. Cal. Dept. of Motor Vehicles CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

IZAIAH A. TILTON,

 Petitioner and Appellant,

v.

CALIFORNIA DEPARTMENT 

OF MOTOR VEHICLES, ET 

AL.,

 Respondents.

2d Civil No. B309424

(Super. Ct. No. 20CV03444)

(Santa Barbara County)

Appellant Izaiah Tilton petitioned for a writ of mandamus 

directing respondents California Department of Motor Vehicles 

and its director, Steve Gordon (collectively DMV), to rescind the 

suspension of his driver license. The trial court summarily 

denied the petition before it received a copy of the complete 

administrative record. In doing so, the trial court failed to

independently weigh the evidence supporting DMV’s findings. 

We reverse and remand. 
2

FACTUAL AND PROCEDURAL BACKGROUND

A police officer at the University of California, Santa 

Barbara saw a silver Mercedes Benz speeding on El Colegio Road 

shortly after midnight on November 15, 2019. The car left the 

officer’s view, but he spotted a similar one about 20 minutes later 

in nearby Isla Vista. He approached the Mercedes on foot, saw 

appellant in the driver’s seat, and questioned him about his 

speeding on El Colegio Road. The officer suspected appellant had 

been drinking and seized his driver license when he declined a 

breath test.1 

A DMV hearing officer found police properly seized 

appellant’s license and suspended his driving privileges. 

Appellant sought review by petitioning for a writ of 

administrative mandamus on the grounds the decision was not 

supported by the weight of the evidence. (Code Civ. Proc., 

§ 1094.5.)2 He requested the court issue a peremptory writ 

directing DMV to rescind its suspension and return or reissue his 

license. Appellant immediately applied ex parte for an order 

staying his license suspension while the petition was pending.

The trial court heard the ex parte stay request six days 

after appellant filed his petition. It issued a written ruling the 

same day denying not only the stay request, but also the writ 

petition. It concluded DMV had “given Petitioner a thorough and 

fair opportunity to present his case” and “concluded the evidence 

was sufficient to suspend Petitioner’s driving privilege.” The trial

1 Vehicle Code sections 13353 and 13353.1 authorize DMV 

to revoke a person’s driving privileges for one year if the person 

refuses an officer’s request to take a blood alcohol test when 

suspected of driving while intoxicated.

2 We refer to the Code of Civil Procedure unless noted 

otherwise.
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court denied appellant’s request for a statement of decision 

explaining the ruling in more detail. 

Appellant timely appealed. DMV is a party to the appeal 

but declined to respond to the opening brief.

DISCUSSION

The trial court uses its independent judgment when 

reviewing a decision by the DMV to suspend a driver’s license. 

(Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 

392, 394; § 1094.5, subd. (c).) It must independently weigh the 

evidence and make its own findings. (Levingston v. Retirement 

Board (1995) 38 Cal.App.4th 996, 1000.) “[T]he party challenging 

the administrative decision bears the burden of convincing the 

court that the administrative findings are contrary to the weight 

of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 

817.) We generally review the trial court’s rulings for substantial 

evidence, but “exercise independent review to the extent we 

determine legal issues such as the interpretation of statutes and 

administrative regulations.” (Harbor Regional Center v. Office of 

Administrative Hearings (2012) 210 Cal.App.4th 293, 304 citing 

Silver v. Los Angeles County Metropolitan Transportation 

Authority (2000) 79 Cal.App.4th 338, 348.)

Appellant’s petition stated he would lodge “a complete 

record of the administrative proceedings immediately after it is 

made available.” The trial court disposed of the petition, 

however, before it received any of the record. It appears to have 

assumed the petition’s four exhibits provided enough

documentation to dismiss appellant’s challenge out of hand. 

However, the court’s written decision does not identify any 

procedural or substantive defect that may have justified its 

premature disposition. (See, e.g., Gomez v. Superior Court (2012) 

54 Cal.4th 293, 301 [court may dismiss administrative writ 

petition if it “fails to allege a prima facie case for relief or is 
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procedurally defective”]; Kingston v. Dept. of Motor Vehicles

(1969) 271 Cal.App.2d 549, 552 [“a court may deny an ex parte 

petition for an alternative writ of mandate ‘out of hand’ when it 

appears from the face of the petition that a peremptory writ will 

not be issued”].) 

We conclude the superior court deviated from section 

1094.5, subdivision (c)’s directive to “exercise its independent 

judgment on the evidence” when it disposed of the petition in this 

manner. “[W]here the court has no administrative record, it 

cannot weigh the evidence. Nor may it decide the sufficiency of 

the evidence supporting the administrative decision.” (Ocheltree

v. Gourley (2002) 102 Cal.App.4th 1013, 1017, citing Elizabeth D. 

v. Zolin (1993) 21 Cal.App.4th 347, 353.) The parties did not 

invite the court to hear the petition at this prefatory hearing. 

Appellant sought ex parte relief for the limited purpose of staying

his suspension lis pendens; DMV did not even appear in the case 

until late December of 2020, seemingly unaware the court had 

ruled in its favor more than two months earlier.

DISPOSITION

The judgment is reversed. We remand with directions to 

issue an alternative writ setting the case for hearing after the 

superior court receives, reviews, and considers the administrative 

record. Appellant shall recover his costs. 

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J. TANGEMAN, J.
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Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

______________________________

William C. Makler for Petitioner and Appellant. 

Rob Bonta, Attorney General, Victoria Jalili, Deputy 

Attorney General, for Respondents.