Filed 9/16/14 Kushner v. Shiomoto CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LEE G. KUSHNER,

Plaintiff and Appellant,

v.

JEAN SHIOMOTO, as Chief Deputy 

Director, etc.,

Defendant and Respondent.

 B249552

 (Los Angeles County

 Super. Ct. No. BS138894)

APPEAL from a judgment of the Superior Court of Los Angeles County, Luis 

Lavin, Judge. Affirmed. 

Lee G. Kushner, in pro. per., for Plaintiff and Appellant. 

Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Chief Assistant 

Attorney General, Michael E. Whitaker, and Michael J. Hui, Deputy Attorneys General, 

for Plaintiff and Respondent.
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Lee Kushner, representing himself in this court as he did in the superior court, 

appeals the denial of his petition for writ of mandate challenging the suspension of his 

driving privileges by the Department of Motor Vehicles (Department). Kushner contends 

the Department should have investigated the facts underlying his traffic convictions 

before suspending his license for failure to pay the fine imposed by the criminal court, it 

was improper to suspend his license based on a fine that included a collection agency fee

and suspension of his license under the circumstances here violated his fundamental right

to drive. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kushner was cited by a Beverly Hills police officer on September 1, 2010 for 

violating Vehicle Code sections 22400, subdivision (a) (impeding traffic),

1

and 22106 

(unsafe backing).

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 Kushner contested the citations in traffic court in Beverly Hills. He 

was found guilty on May 17, 2011 after a bench trial and ordered to pay a fine, including 

court costs, of $440. The fine was to be paid within three months, that is, by August 17, 

2011. Kushner apparently elected to do community service in lieu of paying the fine. 

Kushner did not appeal the judgment. However, he sent a letter to the supervising

judge at the Beverly Hills courthouse, complaining of the conduct of the bench officer

who had presided at his trial and asking that the adverse judgment be set aside. The 

request was denied.

Kushner neither paid the fine nor completed his community service obligation. 

(Kushner subsequently asserted he was unable to do so because he “needed every spare 

moment to look for work.”) The court referred the matter to a collection agency. 

On February 6, 2012 GC Services Limited Partnership, Collection Agency

Division, sent Kushner a “final notice” indicating there was a balance due of $740 on the 

outstanding judgment and advising him his failure to pay the full balance due or to 

 

1

Statutory references are to the Vehicle Code unless otherwise indicated.

2

Our description of the events preceding the filing of Kushner’s petition for writ of 

mandate is based primarily on the exhibits attached to his petition.
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establish an approved payment plan within 30 days could result in the suspension of his 

driving privileges. Kushner apparently attempted to pay something less than the full 

$740 balance but his proffer was refused by the collection agency.

The Department served Kushner with an order of suspension on April 16, 2012, 

notifying him his driving privileges would be suspended as of May 16, 2012 pursuant to

Vehicle Code section 13365 because he had failed to pay an outstanding fine. The order 

further stated the suspension would remain in effect until all past due fines had been paid.

On April 25, 2012 Kushner wrote the superior court, seeking to return the case to 

the court’s calendar to permit him to request a reduction of the imposed fine and the $300

collection fee. In a response dated May 14, 2012 the court directed Kushner to the 

collection agency to make payment arrangements.

Kushner filed his petition for writ of mandate on August 14, 2012, directed to 

George Valverde, then director of the Department, seeking to set aside his license 

suspension. The matter was argued and submitted on March 28, 2013. In its written 

decision and order denying writ of mandate, the superior court rejected what it 

understood to be Kushner’s argument that he was entitled to a new hearing before the 

Department suspended his driving privileges. The court first found the court appearances 

resulting from the traffic citations that led to imposition of the fine satisfied the hearing 

requirements of due process. The court then ruled Kushner could not collaterally attack 

the court order requiring him to pay the fine through a mandamus proceeding: “If 

Petitioner was dissatisfied with the court’s May 17, 2011 order, or his subsequent 

attempts to get the fine reduced, he should have filed an appeal.”

Kushner filed a timely notice of appeal. 

DISCUSSION

1. The Law Governing Suspension of a Driver’s License for Failure To Pay Fines

A first offense infraction violation of the Vehicle Code is punishable by a fine not 

exceeding $100. (§ 42001, subd. (a)(1).) In addition to the base fine, however, various 

mandatory penalties, fees and assessments, which can total approximately 300 percent of 
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the base fine, must be added. (See, e.g., Pen. Code, § 1464, subd. (a)(1) [state penalty of 

$10 for every $10 of fine imposed for all criminal offenses including Vehicle Code 

violations except parking offenses]; Gov. Code, § 70373, subd. (a)(1) [mandatory 

assessment to maintain adequate funding for court facilities imposed on every conviction 

for a criminal offense, “including a traffic offense” except parking offenses]; see

generally § 40310 [authorizing Judicial Council to establish uniform bail and penalty 

schedules]; Cal. Rules of Court, rule 4.102.) Before imposing a fine for conviction of a 

Vehicle Code violation, the court must, on the defendant’s request, consider the 

defendant’s ability to pay. (§ 42003, subd. (c).) The defendant has the burden of 

demonstrating his or her lack of ability to pay. (Ibid.; see also § 42003, subd. (e) “[a]t 

any time during the pendency of the judgment rendered according to the terms of this 

section, a defendant against whom a judgment has been rendered may petition the 

rendering court to modify or vacate its previous judgment on the grounds of a change of 

circumstances with regard to the defendant’s ability to pay the judgment”].)

The court generally sets a specific time for payment of the fine. (§ 42003,

subd. (a) [“[a] judgment that a person convicted of an infraction be punished by a fine 

may also provide for the payment to be made within a specified time or in specified 

installments”].) A late charge in the amount of 50 percent of the total initial fine may be 

added if the fine is not paid on time. (§ 40310.) 

The willful failure to pay a fine imposed by the court for a Vehicle Code violation 

within the time authorized by the court and without presenting a lawful excuse before the 

fine is due is a misdemeanor. (§ 40508, subd. (b).) In addition to any other penalty, 

pursuant to Penal Code section 1214.1, subdivision (a), the court may impose a civil 

assessment of up to $300 against any defendant who fails, after notice and without good 

cause, to pay any portion of a fine ordered by the court. 

Section 40509, subdivision (b), authorizes the court to notify the Department of 

the defendant’s failure to pay a fine within the authorized time. Section 13365, 

subdivision (a), in turn, provides, “Upon receipt of notification of a violation of 
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subdivision (a) or (b) of Section 40508, the department shall take the following action:

[¶] (1) If the notice is given pursuant to subdivision (a) or (b) of Section 40509, if the 

driving record of the person who is the subject of the notice contains one or more prior 

notifications of a violation pursuant to Section 40509 or 40509.5, and if the person’s 

driving privilege is not currently suspended under this section, the department shall 

suspend the driving privilege of the person.” The suspension continues until the person’s 

driving record does not reflect any unresolved violations of section 40508, 

subdivisions (a) or (b). (§ 13365, subd. (a); see § 12807, subd. (c) [the Department shall 

not issue or renew a driver’s license to any person “[w]hen the department has received a 

notice pursuant to Section 40509 or 40509.5, unless the department has received a 

certificate as provided in those sections”].)

2. The Department Was Not Obligated To Hold a Hearing or Conduct an 

Investigation Before Suspending Kushner’s License

As just discussed, section 13365, subdivision (a), requires the Department to 

summarily suspend a driver’s license upon receipt of notice from the court that the 

licensee failed to pay a fine within the authorized time.

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The summary nature of that 

suspension is reinforced by section 14101, subdivision (a), which provides a person is not 

entitled to a hearing “[i]f the action by the department is made mandatory by this code.” 

Kushner does not contend he has paid the fine imposed, the notice from the court to the 

Department that the fine remained unpaid was somehow incorrect or the notice was not 

actually received by the Department prior to issuance of the suspension notice. 

 

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At oral argument Kushner asserted for the first time there was no evidence in the 

record that the superior court had properly notified the Department of his failure to pay 

the fine within the authorized time, as provided by section 40509, subdivision (b), 

thereby triggering mandatory suspension of his license pursuant to section 13365, 

subdivision (a). Because this argument was not presented as one of the grounds for his 

petition for writ of mandate, the Department had no reason to include the section 40509 

notice in responding to the petition. Moreover, pursuant to Evidence Code section 664 

and in the absence of evidence to the contrary, we presume an official duty [here, 

providing notice to the Department when Kushner’s time to pay the fine and related 

assessments had expired] “has been regularly performed.”
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Accordingly, there is no basis for this court to reverse the superior court’s denial of the 

petition for a writ of mandate.

As the superior court explained, although the Supreme Court in Rios v. Cozens

(1972) 7 Cal.3d 792 held a person’s interests in the retention of his or her driver’s license 

and the use of his or her motor vehicle are sufficiently important to trigger the due 

process requirement of a hearing before being deprived of those interests, in the 

circumstances here Kushner’s due process rights were fully satisfied by his opportunity to 

challenge the evidence against him and to present evidence on his own behalf before the 

traffic court in Beverly Hills. (People v. Bailey (1982) 133 Cal.App.3d.Supp. 12, 16 

[“the determination of license suspension by the Department of Motor Vehicles without 

affording the licensee an opportunity for a hearing beyond the court appearances directed 

by the summons on the traffic citations sufficiently complies with the ‘meaningful’ and 

‘appropriate’ hearing requirements of due process”]; see also id. at p. 15 [“[i]t would be a 

legal absurdity to require the Department of Motor Vehicles to grant a hearing on the 

question of whether a person did in fact violate his written promise to appear on a traffic 

citation, when the court where appearance was required has already made such a 

finding”].)

In this court Kushner appears to contend, not that the Department was obligated—

either by statute or principles of due process—to hold a hearing before suspending his 

license, but that (a) it had the discretion to investigate the underlying circumstances of the 

infractions and the legitimacy of the total fine ultimately imposed, and (b) its failure to do 

so and to set aside the final $300 penalty assessment (or “collection agency fee,” as he 

describes it) was arbitrary and capricious. The Department insists it had no such 

discretion since license suspension under section 13365, subdivision (a), by its express 

terms, is mandatory. 

The Department is correct: The independent review of traffic court proceedings 

sought by Kushner is nowhere authorized by the Vehicle Code. (See Williams v. 

Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 953-954 [individual whose 
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license was suspended by the Department pursuant to a mandatory provision in the 

Vehicle Code had to seek a writ of mandamus directly against the criminal court to 

challenge the validity of one of his convictions for driving under the influence of alcohol; 

“[t]he Department cannot exercise the judicial power required to nullify the prior 

conviction”]; see generally Laisne v. California State Board of Optometry (1942) 

19 Cal.2d 831, 834-835 [explaining limits on administrative agency’s ability to “exercise 

judicial power”].) 

But even if Kushner were right, mandamus will not lie to control an exercise of 

discretion, that is, to compel a public official to exercise his or her discretion in a 

particular manner. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.)

“Generally, Code of Civil Procedure section 1085 may only be employed to compel the 

performance of a duty which is purely ministerial in character. [Citation.] [¶] A 

ministerial act is an act that a public officer is required to perform in a prescribed manner 

in obedience to the mandate of legal authority and without regard to his own judgment or 

opinion concerning such act’s propriety or impropriety, when a given state of facts exists. 

Discretion, on the other hand, is the power conferred on public functionaries to act 

officially according to the dictates of their own judgment.” (Rodriguez v. Solis (1991) 

1 Cal.App.4th 495, 501-502; see Brierton v. Department of Motor Vehicles (2006)

140 Cal.App.4th 427, 437 [“‘[a] writ of mandamus will not lie to compel the performance 

of an act where no duty exists’”].) “Mandamus does not lie to compel a public agency to 

exercise discretionary powers in a particular manner, only to compel it to exercise its 

discretion in some manner.” (AIDS Healthcare Foundation v. Los Angeles County Dept. 

of Public Health (2011) 197 Cal.App.4th 693, 700-701; accord, Landsborough v. Kelly

(1934) 1 Cal.2d 739, 744.)

4

 

4

To the extent Kushner attempted to plead a cause of action for a writ of 

administrative mandamus pursuant to Code of Civil Procedure section 1094.5, there 

simply is no basis for such a claim. On the facts presented the challenged action (or 

inaction) by the Department was not quasi-judicial in nature. (See, e.g., Western States 

Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566 [a party seeking review of a 
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DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

PERLUSS, P. J.

We concur: 

ZELON, J.

SEGAL, J.*

 

public agency decision may bring an administrative mandamus action if the agency 

decision was “made as a result of a proceeding in which by law a hearing is required to 

be given, evidence is required to be taken and discretion in the determination of facts is 

vested in a public agency . . .”]; Pomona College v. Superior Court (1996) 

45 Cal.App.4th 1716, 1729 [“[s]ection 1094.5 expressly provides that it is the 

requirement of a hearing and taking of evidence—not whether a hearing is actually held 

and evidence actually taken—that triggers the availability of mandamus review”].)

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.