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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.

THE 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 (Veh. Code, 

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

Shiomoto as Director of the DMV.
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§ 23152)2 (hereinafter, driving under the influence or DUI). The trial court 

denied his petition after finding the weight of the evidence, including sworn 

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

affirm.

FACTUAL AND PROCEDURAL 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 the Land Rover reversing into 

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

driver of the Land Rover, identified as Corkery, staggered 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 sobriety 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.
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At the station, Officer Tsang read the formal chemical test admonitions

to Corkery from a preprinted DS-367 form, which is a sworn document that 

must be submitted to the DMV by the arresting/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 

was 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 identifies 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 refused to 
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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 petition in superior court 

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

Corkery filed a motion for the court to grant the petition that attached the 

administrative record. On the same day, the DMV filed its answer.

On October 3, 2019, 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 

denied 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 Suspension: The 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, if 
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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 under the influence of alcohol or a drug. (§ 23612, subd. (a)(1)(C).)” 

(Troppman 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] officer’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 the

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

There are four elements of 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 its 
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determination. (§§ 13557, subd. (a), 14104.7; see also § 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 mandamus. (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 the

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

[(1997)] 16 Cal.4th [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 legitimate 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 reverse 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.)
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II. Writ relief was properly denied.

A. The DS-367 form was 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 13380, 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 failed to complete the section of the DS-367 form 

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

admonished 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 this inconsistency 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 form

and the unsworn 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 DS367 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.’
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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 with the relaxed evidentiary standards of an administrative per se 

hearing that technical omissions of proof can be corrected by an unsworn 

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 serious 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 information, 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 inconsistency relating to the 

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

its admissibility. Moreover, contrary to Corkery’s claim, the two reports are 

not irreconcilable.

3 The DMV hearing officer reasonably 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 admonishments 

3 Corkery relies on case law holding that irreconcilable verdicts must be 

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

716. The rule governing inconsistent evidence differs. Any inconsistency 

goes 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.)
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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 defendant was tested within three hours of driving].)

There is no basis on this record to disturb 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 requisite 

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

also fails.

4 This provision states: “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 will 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 period 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 23153 of this code, or of 

Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any 
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As the DMV notes, the law presumes public officers properly discharge 

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

both the sworn DS-367 form and the unsworn report reflect that Officer

Tsang, accompanied by Officer Hoang, read Corkery the admonishments 

required by Vehicle Code section 23612. Corkery points to no evidence that

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

he failed to understand the admonishments he received. This evidence 

sufficed 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 meritless.

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 Civil 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 petition 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 

pursuant 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).)
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Here, the DMV certified its receipt of the administrative record on 

August 6, 2019.

5 The DMV filed its 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 in 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 when an answer is filed late. Both grounds are correct.

First, a trial court has the inherent authority 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 [“The 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 appears that respondent received the 

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

clear.”
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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.
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_________________________

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.