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Filed 8/26/21 Corkery v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

PATRICK CORKERY,

Plaintiff and Appellant,

v.

T HE SUPERIOR COURT OF THE

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant and Respondent;

STEVE GORDON, as Director, etc.

, Real Party in Interest and

Respondent. A159463

( City & County of San Francisco

Super. Ct. No. CPF

- 19

- 516688)

This is an appeal from final judgment after the trial court denied the

petition for a writ of administrative mandamus (petition) filed by plaintiff

Patrick Corkery against real party in interest Jean Shiomoto, in her capacity

as Director of the Department of Motor Vehicles (DMV). 1 Corkery sought by

writ to have the court set aside the DMV’s suspension of his license for

driving with a blood

- alcohol level of .08 percent or higher (Ve h . Code

,

1 Since the time this petition was filed, Steve Gordon has replaced Jean

Shiomoto as Director of the DMV.2

§ 23152) 2 (hereinafter, driving under the influence or DUI) . The trial court

denied his petition after find ing the weight of the evidence, including sworn

and unsworn police documents , supported the DMV’s suspension order

. We

affirm.

FACTUAL AND PROCEDURA L BACKGROUND

On April 13, 2018 , about 6:41 p.m.

, on Folsom Street in San Francisco

,
Corkery was detained on suspicion of driving under the influence. San

Francisco Police Officer Hoang and Field Training Officer Tsang responded to

a report of a collision involving a drunk driver in front of a restaurant

.
There, the officers found a Toyota Prius with front

- end damage parked

behind a Land Rover parked at an angle in a passenger loading zone, almost

obstructing the bike lane. A witness described t he Land Rover reversing into

t he Prius while its driver attempted to park. Without leaving a note, t he

driver of the Land Rover , identified as Corkery, s taggered into the

restaurant, where the officers later found him seated at a table

.
Corkery, found in possession of the Land Rover key, had bloodshot

eyes, drooping eyelids, slurred speech and a strong alcohol odor. After

Corkery denied being drunk or driving and provided evasive information

about the accident, the officers tried to administer field sobr iety tests. These

tests ended prematurely for safety reasons after Corkery nearly fell. Officer

Hoang gave Corkery the option of a blood or breath test, but he refused both.

Based on his objective signs of drunkenness, Corkery was arrested for driving

under the influence about 7:04 p.m. and transported to the San Francisco

Police Department Mission Station.

2 Unless otherwise stated, all statutory citations herein are to the

Vehicle Code.3

At the station, Officer Tsang read the formal chemical test admonition s

to Corker y from a pre printed DS

- 367 form, which is a sworn document that

must be submitted to the DMV by the a rresting/ responding officer following a

DUI arrest. After receiving the admonitions, Corkery responded no to his

options of taking a blood or breath test and continued to deny driving the

Land Rover. Officer Hoang served Corkery an administrative per se

suspension/revocation order notifying him that the DMV was suspending his

driver’s license based on his refusal to submit to chemical testing and that he

w as entitled to request a hearing to challenge his suspension.

Officer Hoang later prepared and signed the DS

- 367, which begins on

page 2 , “I admonished the driver,” and requires information as to the date,

time and location of the incident. While Officer Hoang provided this

information, he left blank another section of the form that reads, “If the

above Chemical Test Admonition was read to arrestee by another officer,

indicate that officer’s : Name _____, Badge/ID No. _____, Agency _____, Phone

Number ( ) .”

In addition to the DS

- 367 form, Officer Hoang prepared an unsworn

traffic collision report (unsworn report) that documented his and Officer

Tsang’s investigation of Corkery’s collision while driving under the influence.

The unsworn report identifie s both Officer Hoang and Officer Tsang as the

reporting/arresting officers and states in relevant part: “At Mission Station,

FTO Tsang read the chemical test admonition from the DMV 367 Form to

[Corkery].”

Corkery timely requested an administrative hearing to challenge his

suspension , which was held on March 11, 2019. After considering the

evidence, the DMV found: (1) there was probable cause to arrest Corkery

based on his objective signs of intoxication ; (2) Corkery thereafter refu sed to4

submit to chemical testing after receiving proper admonitions by Officer

Tsang and Officer Hoang ; and (3) based on his refusal to test, the one

- year

suspension of Corkery’s driving privilege was appropriate.

On May 30, 2019

, Corkery filed the petit ion in superior court

challeng ing the DMV’s suspension of his license. On September 9, 2019,

Corkery filed a motion for the court to grant the petition that attach ed the

administrative record

. On the same day

, the D MV filed its answer.

On October 3, 20 19 , the court denied Corkery’s petition after finding

the weight of the evidence supported the DMV’s suspension decision.

Judgment was entered in the DMV’s favor on October 16, 2019

.

On October 31, 2019 , Corkery moved for a new trial, which the court

den ied after a hearing on December 30, 2019 . This timely appeal followed.

DISCUSSION

Corkery challenges the trial court’s denial of his petition for relief from

the DMV’s suspension order on three primary grounds: (1) the court

improperly admitted Officer Hoang’s sworn DS

- 367 form

, which was

incomplete and irreconcilably inconsistent with his unsworn traffic collision

report; (2) the evidence was insufficient to prove he was properly admonished

regarding his right to refuse chemical testing; and (3) the court erroneously

rejected his argument that, as a penalty for the DMV’s late

- filed answer, the

DMV should be deemed to have admitted all facts alleged in his petition

. We

address these issues after setting forth the legal framework.

I. License Suspensio n : Th e Implied Consent Law.

A. Suspension.

In California, “ ‘ [a] person who drives a motor vehicle is deemed to have

given his or her consent to chemical testing of his or her blood or breath for

the purpose of determining the alcoholic content of his or her blood, if5

lawfully arrested for ’ a driving

- under

- the influence offense ( § 23612, subd.

(a)(1)(A)) , and that such testing ‘ shall be

. . . administered at the direction of

a peace officer having reasonable cause to believe ’ the person was driving

while u nder the influence of alcohol or a drug. ( § 23612, subd. (a)(1)(C) .) ”

( T roppman v. Valverde ( 2007 ) 40 Cal.4th 1121, 1129

– 1130 ( Troppman )

. )

The DMV is authorized to suspend or revoke the driver’s license of “a

person [who] refuses [a law enforcement] off icer’s request to submit to, or

fails to complete, a chemical test or tests pursuant to Section 23612, upon

receipt of the officer’s sworn statement that the officer had reasonable cause

to believe the person had been driving a motor vehicle” while under t he

influence of alcohol or a drug . (§ 13353, subd. (a).)

There are four elements o f an implied consent suspension: (1) the

officer had reasonable cause to believe the driver drove under the influence of

alcohol in violation of section 23152 or 23153; (2) the driver was lawfully

detained; (3) the driver refused to submit to or failed to complete a chemical

test requested by the officer; and (4) the driver was admonished that his or

her driving privilege would be suspended or revoked if he or she refused to

submit to or complete a chemical test. ( Troppman, supra , 40 Cal.4th at p.

1131.) Corkery’s challenge relates to the fourth element, whether there was

evidence supporting the DMV’s finding that he was properly admonished.

B. Administrative & Court Review.

A driver subject to an implied consent suspension may request an

administrative hearing with the DMV. (§ 13353, subd. (e).) “ In an internal

administrative review, the DMV must consider ‘ the [arresting officer’s] sworn

report

. . . and any other evidence accompanying the report, ’ while in an

administrative hearing the DMV is required to consider its official records,

but may also receive sworn testimony as a basis for making its6

determination. (§§ 13557, subd. (a), 14104.7; see als o § 13558, subd. (b).) The

officer’s report is admissible under the public employee business records

exception to the hearsay rule and will suffice to support the necessary

findings, provided the statement is based on the officer’s firsthand

observations and is made near the time of the event.” ( Morgenstern v.

Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372

( Morgenstern ).)

The DMV’s decision to uphold a driver’s implied consent suspension is

subject to judicial review by administrative manda mus. (Code Civ. Proc.,

§ 1094.5; Veh. Code, § 13559, subd. (a).) When, as here, a suspended driver

petitions for a writ of administrative mandate, “ the superior court is required

to determine, based on the exercise of its independent judgment, whether th e

weight of the evidence supports the administrative decision. ( Lake v. Reed

[(1997)] 16 Cal.4 t h [448,] 456; Code Civ. Proc., § 1094.5, subd. (c).) In

reviewing the administrative record, the court makes its own determination

about the credibility of the witnesses. ” ( Morgenstern

, supra

, 111 Cal.App.4th

at p. 372.)

“On appeal, we review the record to determine whether the trial court’s

findings are supported by substantial evidence, resolving all evidentiary

conflicts and drawing all le gitimate and reasonable inferences in favor of the

trial court’s decision. ( Lake v. Reed, supra

, 16 Cal.4th at p. 457.) We exercise

de novo review, however, of the trial court’s legal determinations. ( Id

. at pp.

456

– 457.)” ( Morgenstern, supra

, 111 Cal. App.4th at p. 372.) We rev erse the

court’s evidentiary rulings “ ‘ “ ‘ “ only upon a clear showing of abuse. ” ’ ” ’ ”

( Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210,

1218 .)7

II. Writ relief was properly denied.

A. The DS

- 367 form w as admissible

.

Corkery contends the trial court abused its discretion in admitting the

DS

- 367 form because Officer Hoang, the arresting officer who submitted the

sworn document , was not truthful and omitted necessary information. We

disagree.

Section 1338 0, subdivision (a) requires the arresting officer to

“immediately forward to the department a sworn report of all information

relevant to the enforcement action,” including, as Corkery notes, information

regarding “ the circumstances constituting a refusal to submit to or complete

the chemical testing

. . . . ” (Italics omitted.)

Here, Officer Hoang fa iled to complete the section of the DS

- 367 form

requiring information regarding the identity of the officer (Tsang) who

admonish ed Corkery

. However, in Officer Hoang’s unsworn report, prepared

the same day, he unequivocally identified Officer Tsang as the admonishing

officer. Corkery contends based on th is inconsistenc y that the DS

- 367 form

was “ ‘ wholly devoid of relevant information ’ ” and, thus, inadmissible.

The trial court rejected Corkery’s challenge to the sworn DS

- 367 form

,
reasoning (1) the hearing officer could reasonably conclude that the proper

admonition was given and that any inconsistencies between the DS

- 367 for m

and the unswo rn report “ were the result of sloppy paperwork, not perjury

, ”

and (2) in administrative hearings such as in this case the rules of evidence

are more relaxed than in court hearings

.
The trial court acted within its discretion in admitting the sworn DS

367 form on these grounds. In MacDonald v. Gutierrez (2004) 32 Cal.4th 150

,

159 , the Supreme Court held: “Section 13380 provides the arresting officer ’ s

sworn report will contain ‘ all information relevant to the enforcement action. ’8

Therefore, the Legislature clearly anticipates the sworn report will contain

all or nearly all of the information necessary to remove the offender’s license.

In light of this legislative intent, the sworn report cannot be wholly devoid of

relevant information. However, so long as a sworn report is filed, it is

consistent w ith the relaxed evidentiary standards of an administrative per se

hearing that technical omissions of proof can be corrected by an unswo rn

report filed by the arresting officer.” ( Accord, Gov. Code, § 11513, subd. (c) [in

administrative hearings, “[a] ny relevant evidence shall be admitted if it is the

sort of evidence on which responsible persons are accustomed to rely in the

conduct of s erious affairs, regardless of the existence of any common law or

statutory rule which might make improper the admission of the evidence over

objection in civil actions” ]. )

Applying MacDonald to our facts, we conclude that notwithstanding

the missing infor mation, the sworn DS

- 367 form was admissible and relevant

( along with Officer Hoang’s unsworn report) as to whether the DMV had

grounds to suspend Corkery’s license. Any inconsistenc y relating to the

identity of the admonishing officer impacted the weight of this evidence , not

i t s admissib i l ity

. Moreover, contrary to Corkery ’s claim

, the two reports are

not irreconcilable

. 3 T he DMV hearing officer reasonabl y found

, based on both

the sworn DS

- 367 form and the unsworn report

, that Officers Hoang and

Tsang worked together to arrest Corkery for a DUI and transport him to the

police station , where Officer Tsang read him the appropriate admonish m e nt s

3 Corkery relies on case law holding that irreconcilable verdic ts must be

reversed, citing Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700,

716. The rule governing inconsistent evidence differs . Any i nconsistency

go es to the weight and credibility of the evidence

, an issue reserved for the

trier of fact

, not the appellate court

. ( See People v. Tompkins (2010) 185

Cal.App.4th 1253, 1261 .)9

while Officer Hoang observed and documented the incident. (See Murphey v.

Shiomoto (2017) 13 Cal.App.5th 1052, 1066

– 1067 [notwithstanding an error

in the arrest report regarding the time of arrest, it was reasonable to find

based on the record that defe ndant was tested within three hours of driv ing ].)

There is no basis on this record to dis turb the court’s admission of this

evidence or its finding that the weight of the evidence supported the DMV’s

decision

.

B. Substantial evidence proved Corkery was properly

admonished.

Corkery next contends that even if the sworn DS

- 367 form and Officer

Hoang’s unsworn report were admissible, nothing in those reports or the

other evidence proved Officer Tsang gave him each of the requisi te

admonishments under section 23612, subdivision (a)(1)(D). 4 This argument

also fails

.

4 This provision state s: “ The person shall be told that his or her failure

to submit to, or the failure to complete, the required breath or urine testing

will result in a fine and mandatory imprisonment if the person is convicted of

a violation of Section 23152 or 23153. The person shall also be told that his

or her failure to submit to, or the failure to complete, the required breath,

blood, or urine tests wil l result in (i) the administrative suspension by the
department of the person’s privilege to operate a motor vehicle for a period of

one year, (ii) the administrative revocation by the department of the person’s

privilege to operate a motor vehicle for a p eriod of two years if the refusal

occurs within 10 years of a separate violation of Section 23103 as specified in

Section 23103.5, or of Section 23140, 23152

, or 23153 of this code, or of

Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that
resulted in a conviction, or if the person’s privilege to operate a motor vehicle

has been suspended or revoked pursuant to Section 13353, 13353.1, or

13353.2 for an offense that occurred on a separate occasion, or (iii) the

administrative revocation by the department of the person’s privilege to

operate a motor vehicle for a period of three years if the refusal occurs within

10 years of two or more separate violations of Section 23103 as specified in

Section 23103.5, or of Section 23140, 23152

, or 231 53 of this code, or of

Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any10

As the DMV notes, the law presumes public offic er s properly discharge

their official duties. (Evid. Code, § 664.) C onsistent with this presumption

,

b oth the sworn DS

- 367 form and the unsworn report reflect that Offic er

Tsang, accompanied by Officer Hoang

, read Corkery the admonishments

required by Vehicle Code s ection 23612. Corkery point s to no evidence that

he was not given the proper admonishments by one of thes e officers or that

he failed to understand the admonishments he received

. This evidence

suffic ed to support the DMV’s finding , upheld by the court, that Corkery was

properly admonished

.

III. Corkery’s timeliness challenge to the DMV’s answer is waived

and meri tless.

Corkery last contends the trial court erred when rejecting his argument

that the DMV’s untimely filing of an answer requires the facts alleged in the

petition to be deemed admitted as true

. Not so.

Code of Civ il Procedure section 1089.5 states in relevant part : “ [W]here

a record of the proceeding to be reviewed has been requested pursuant to

Section 11523 of the Government Code, or otherwise, and has not been filed

with the petition, the party upon whom the peti tion has been served,

including any real party in interest, shall answer or otherwise respond within

30 days following receipt of a copy of the record. ”

combination thereof, that resulted in convictions, or if the person’s privilege

to operate a motor vehicle has been suspended or revoked two or more times

pu rsuant to Section 13353, 13353.1

, or 13353.2 for offenses that occurred on

separate occasions, or if there is any combination of those convictions,

administrative suspensions, or revocations .” (§ 23612, subd. (a)(1)(D).)11

Here, the DMV certified its receipt of the administrative record on

August 6, 2019

. 5 The DMV filed i ts answer on September 9, 2019, 34 days

later.

Corkery did not challenge the DMV’s answer as untimely when he

moved the court to grant his petition on September 9, 2019 (the same day the

DMV filed its answer). However, Corkery did so for the first time i n his reply

papers in the trial court , arguing that the DMV should be deemed to have

admitted all factual allegations in the petition due to its late

- filed answer.

The trial court rejected Corkery’s challenge as forfeited because it was

first raised in reply. The court also rejected it on the merits because he cited

no authority for the proposition that a petition’s allegations should be taken

as true whe n an answer i s filed late. Both grounds are correct.

First, a trial court has the inherent authori ty and responsibility to

fairly and efficiently manage the litigation before it. ( Briggs v. Brown ( 2017 )

3 Cal.5th 808, 852.) As such, the court here had discretion to, one, decline to

consider an issue raised by Corkery for the first time on reply and, two,

disregard the DMV’s four

- day delay in filing a timely answer. (See Reichardt

v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘ Obvious reasons of fairness

militate against consideration of an issue raised initially in the reply brief of

an appellant ’ ”]; see also Code Civ. Proc., § 475 [“T he court must, in every

stage of an action, disregard any error, improper ruling, instruction, or defect,

in the pleadings or proceedings which, in the opinion of said court, does not

affect the substantial rights of the parties ”].)

5 The trial court found

, “It appea rs that respondent received the

complete recor d by August 6, 2019, but the date of receipt is not entirely

clear.”12

Moreover , Corkery has failed twice

— before the trial court and this

court

— to offer any legal authority for his extraordinary proposal to penalize

the DMV for filing an answer four days late by deeming the DMV to have

admitted all facts alleged in his petition. Lacking in both precedent and

wisdom, we, like the trial court, decline his proposal. (See Oliveros v. County

of Los Angeles (2004) 120 Cal.App.4th 1389, 1395 [“ the strong public policy

favoring disposition on the merits outweighs the competing policy favoring

judicial efficiency ” ] ; see also McAllister v. County of Monterey (2007) 147

Cal.App.4th 253, 281

– 282 [ “ ‘There is no absolute right to have a pleading

stricken for lack of timeliness in filing where no question of jurisdiction is

involved, and where, as here, the late filing was a mere irregularity [citation];

the granting or denial of the motion is a matter which lies within the

discretion of the court’ ”] .)

DISPOSITION

The judgment is affirmed.13 _________________________ Jackson, J.

WE CONCUR:

_________________________ Petrou, Acting P. J.

_________________________ Chou, J. *

A159463/ Corkery v. Superior Court

* Judge of the Superior Court of San Mateo County, assigned by the

Chief Justice pursuant to article VI, section 6 of the California Constitution.